UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
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þ
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Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
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for the quarterly period ended
August 31, 2007
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or
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o
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Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
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for the transition period from
to
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Commission File No.
1-14187
RPM International Inc.
(Exact name of Registrant as specified in its charter)
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DELAWARE
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02-0642224
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(State or other jurisdiction of incorporation or organization)
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(IRS Employer Identification No.)
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P.O. BOX 777; 2628 PEARL ROAD; MEDINA, OHIO
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44258
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number including area code
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(330) 273-5090
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Not Applicable
(Former name, former address and former fiscal year, if changed since last report)
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes
þ
No
o
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Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer,
or a non-accelerated filer. See definition of accelerated filer and large accelerated filer in
Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer
þ
Accelerated filer
o
Non-accelerated filer
o
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Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act).
Yes
o
No
þ
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As of October 3, 2007
121,400,027 Shares of RPM International Inc. Common Stock were outstanding.
RPM INTERNATIONAL INC. AND SUBSIDIARIES*
INDEX
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*
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As used herein, the terms RPM and the Company refer to RPM International Inc. and its
subsidiaries, unless the context indicates otherwise.
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3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
RPM INTERNATIONAL INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except per share amounts)
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August 31, 2007
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May 31, 2007
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(Unaudited)
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ASSETS
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Current Assets
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Cash and short-term investments
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$
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159,843
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$
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159,016
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Trade accounts receivable (less allowances of
$19,862 and $19,167, respectively)
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675,227
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744,259
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Inventories
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471,660
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437,759
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Deferred income taxes
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37,489
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39,276
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Prepaid expenses and other current assets
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202,033
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189,939
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Total current assets
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1,546,252
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1,570,249
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Property, Plant and Equipment, at Cost
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976,253
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963,200
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Allowance for depreciation and amortization
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(511,066
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(489,904
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Property, plant and equipment, net
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465,187
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473,296
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Other Assets
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Goodwill
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836,768
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830,177
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Other intangible assets, net of amortization
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350,132
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353,420
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Other
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99,481
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106,007
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Total other assets
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1,286,381
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1,289,604
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Total Assets
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$
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3,297,820
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$
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3,333,149
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LIABILITIES AND STOCKHOLDERS EQUITY
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Current Liabilities
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Accounts payable
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$
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314,862
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$
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385,003
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Current portion of long-term debt
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102,322
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101,641
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Accrued compensation and benefits
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90,191
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132,555
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Accrued loss reserves
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68,260
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73,178
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Asbestos-related liabilities
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53,000
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53,000
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Other accrued liabilities
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136,041
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119,363
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Total current liabilities
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764,676
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864,740
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Long-Term Liabilities
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Long-term debt, less current maturities
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921,734
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886,416
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Asbestos-related liabilities
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278,445
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301,268
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Other long-term liabilities
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162,579
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175,958
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Deferred income taxes
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27,023
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17,897
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Total long-term liabilities
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1,389,781
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1,381,539
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Stockholders Equity
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Preferred stock, par value $0.01; authorized 50,000 shares;
none issued
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Common stock, par value $0.01 authorized 300,000 shares;
issued and outstanding 121,299 as of August 2007;
issued and outstanding 120,906 as of May 2007
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1,213
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1,209
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Paid-in capital
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589,120
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584,845
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Treasury stock, at cost
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(3,474
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Accumulated other comprehensive income
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38,689
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25,140
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Retained earnings
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517,815
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475,676
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Total stockholders equity
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1,143,363
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1,086,870
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Total Liabilities and Stockholders Equity
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$
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3,297,820
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$
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3,333,149
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The accompanying notes to consolidated financial statements are an integral part of these statements.
4
RPM INTERNATIONAL INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(In thousands, except per share amounts)
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Three Months Ended
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August 31,
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2007
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2006
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Net Sales
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$
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930,339
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$
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844,161
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Cost of Sales
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546,437
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499,088
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Gross Profit
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383,902
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345,073
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Selling, General and Administrative Expenses
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271,035
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237,585
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Interest Expense, Net
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12,718
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13,203
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Income Before Income Taxes
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100,149
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94,285
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Provision for Income Taxes
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31,881
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32,943
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Net Income
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$
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68,268
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$
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61,342
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Average Number of Shares of Common Stock Outstanding:
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Basic
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119,677
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117,467
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Diluted
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130,026
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128,192
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Basic earnings per share of common stock
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$
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0.57
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$
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0.52
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Diluted earnings per share of common stock
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$
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0.53
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$
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0.49
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Cash dividends per share of common stock
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$
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0.175
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$
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0.160
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The accompanying notes to consolidated financial statements are an integral part of these statements.
5
RPM INTERNATIONAL INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
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Three Months Ended
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August 31,
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2007
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2006
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Cash Flows From Operating Activities:
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Net income
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$
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68,268
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$
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61,342
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Depreciation and amortization
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20,878
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19,173
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Items not affecting cash and other
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(1,112
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2,379
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Changes in operating working capital
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(76,408
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)
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(49,320
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Changes in asbestos-related liabilities, net of tax
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(14,657
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(10,523
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(3,031
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23,051
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Cash Flows From Investing Activities:
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Capital expenditures
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(5,514
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(11,246
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Acquisition of businesses, net of cash acquired
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(3,387
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(39,270
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Purchases of marketable securities
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(26,129
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(18,214
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Proceeds from the sale of marketable securities
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25,667
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10,996
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Other
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374
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286
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(8,989
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)
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(57,448
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Cash Flows From Financing Activities:
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Additions to long-term and short-term debt
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34,695
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93,372
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Reductions of long-term and short-term debt
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(830
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(41,234
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Cash dividends
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(21,170
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(18,999
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)
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Exercise of stock options
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2,419
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965
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Repurchase of stock
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(3,474
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)
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11,640
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34,104
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Effect of Exchange Rate Changes on Cash and
Short-Term Investments
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1,207
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(353
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)
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Increase (Decrease) in Cash and Short-Term
Investments
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827
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(646
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)
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Cash and Short-Term Investments at Beginning of
Period
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159,016
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108,616
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Cash and Short-Term Investments at End of Period
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$
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159,843
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$
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107,970
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The accompanying notes to consolidated financial statements are an integral part
of these statements.
6
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
NOTE A BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been prepared in accordance with
the instructions to Form 10-Q and do not include all of the information and notes required by
generally accepted accounting principles (GAAP) in the U.S. for complete financial statements.
In the opinion of management, all adjustments (consisting of normal, recurring accruals) considered
necessary for a fair presentation have been included for the three month periods ended August 31,
2007 and 2006. For further information, refer to the Consolidated Financial Statements and Notes
included in our Annual Report on Form 10-K for the year ended May 31, 2007.
Our business is dependent on external weather factors. Historically, we have experienced strong
sales and net income in our first, second and fourth fiscal quarters comprising the three month
periods ending August 31, November 30 and May 31, respectively, with weaker performance in our
third fiscal quarter (December through February).
Certain reclassifications have been made to prior year amounts to conform to the current year
presentation.
NOTE B NEW ACCOUNTING STANDARDS
In September 2006, the Financial Accounting Standards Board (FASB) issued Statement No. 157,
Fair Value Measurements. Statement 157 clarifies the definition of fair value, establishes a
framework for measuring fair value, and expands the disclosures on fair value measurements. This
statement is effective for fiscal years beginning after November 15, 2007. We are currently
evaluating the impact, if any, the adoption of this statement will have on our financial
statements.
In February 2007, the FASB issued Statement No. 159, The Fair Value Option for Financial Assets
and Financial Liabilities Including an Amendment of FASB Statement No. 115. Statement 159
provides companies with the option to measure, at fair value, certain financial instruments and
other items that are not currently required to be measured at fair value. Entities choosing the
fair value option would be required to recognize subsequent changes in the fair value of those
instruments and other items directly in earnings. This standard also establishes presentation and
disclosure requirements designed to facilitate comparisons between companies that choose different
measurement attributes for similar types of assets and liabilities. This Statement is effective
for the first fiscal year beginning after November 15, 2007. We have evaluated the potential impact
of this statement and anticipate it will have no material impact on our financial position or
results of operations.
In June 2006, the Financial Accounting Standards Board (FASB) issued Interpretation No. 48,
Accounting for Uncertainty in Income Taxes an interpretation of FASB Statement No. 109 (FIN
48). FIN 48, which clarifies the accounting for uncertainty, if any, in income taxes as recognized
in financial statements in accordance with FASB Statement No. 109, Accounting for Income Taxes,
represents a significant change in the accounting and reporting of income taxes.
FIN 48 prescribes the accounting for uncertainty in income taxes by providing guidance on the
recognition threshold and measurement of a position taken in a tax return or a position expected to
be
7
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
taken in a tax return. Additionally, FIN 48 provides guidance on derecognition, classification,
interest and penalties, accounting in interim periods, disclosure, and transition.
The effective date of FIN 48 is for fiscal years beginning after December 15, 2006. We adopted
this interpretation as of June 1, 2007. See
Note I.
NOTE C INVENTORIES
Inventories were composed of the following major classes:
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August 31, 2007
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May 31, 2007
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(In thousands)
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Raw material and supplies
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$
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146,390
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$
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138,541
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Finished goods
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325,270
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299,218
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Total Inventory
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$
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471,660
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$
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437,759
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NOTE D COMPREHENSIVE INCOME
Other comprehensive income includes foreign currency translation adjustments, minimum pension
liability adjustments, unrealized gains or losses on securities and income or loss from
derivatives. The following table illustrates the components of total comprehensive income for each
of the three month periods ended August 31, 2007 and 2006.
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Three Months Ended
|
|
|
August 31,
|
(In thousands)
|
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2007
|
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2006
|
|
Net income
|
|
$
|
68,268
|
|
|
$
|
61,342
|
|
Other Comprehensive Income:
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|
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|
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Foreign currency
translation adjustments
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3,668
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213
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Minimum pension
liability adjustments, net of tax
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(2,308
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)
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(56
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)
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Unrealized gain (loss)
on securities, net of tax
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|
|
(1,142
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)
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|
267
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|
Derivatives income, net of tax
|
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|
1,672
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|
|
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2,668
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Total Comprehensive Income
|
|
$
|
70,158
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|
|
$
|
64,434
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|
|
NOTE F CONTINGENCIES AND LOSS RESERVES
Certain of our wholly-owned subsidiaries, principally Bondex International, Inc. (collectively
referred to as the subsidiaries), are defendants in various asbestos-related bodily injury lawsuits
filed in various
8
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
state courts with the vast majority of current claims pending in five states
Illinois, Ohio, Mississippi, Texas and Florida. These cases generally seek unspecified damages for
asbestos-related diseases based on alleged exposures to asbestos-containing products previously
manufactured by our subsidiaries or others.
As of August 31, 2007, our subsidiaries had a total of 10,957 active asbestos cases compared to a
total of 10,934 cases as of August 31, 2006. For the quarter ended August 31, 2007, our
subsidiaries secured dismissals and/or settlements of 365 claims and made total payments of $22.8
million, which included defense costs paid during the current quarter of $8.8 million. For the
comparable period ended August 31, 2006, dismissals and/or settlements covered 232 claims and total
payments were $16.4 million, which included defense costs paid during the quarter of $6.6 million.
During the quarter, the Company resolved a higher number of claims versus the prior period which
accounted for the increase in year-over-year settlement costs. The Company also had higher
year-over-year defense costs as a result of implementing various changes to the structure of its
defense counsel and in its claims intake and database management facility. To facilitate these and
related changes, the Company has necessarily incurred some duplicate costs and in some instances
accelerated the payment of certain previously incurred expenses. In this regard, the Company
estimates that it spent approximately $3.0 million more than its normal level of defense-related
expenditures due to these added transitional expenses. The Company expects similarly high cash
outlays, for the same reasons, over the next two quarters as it completes these various
defense-related initiatives. Excluding defense costs, the average costs to resolve a claim,
including dismissed claims, were $38,356 and $42,241 for each of the quarters ended August 31, 2007
and 2006, respectively. The amount and timing of dismissals and settlements can fluctuate
significantly from period to period resulting in volatility in the average costs to resolve claims
in any given quarter or year. In addition, in some jurisdictions, cases may involve more than one
individual claimant. As a result, settlement or dismissal statistics on a per case basis are not
necessarily reflective of the payment amounts on a per claimant basis and the amounts and rates can
vary widely depending on a variety of factors including the mix of malignancy and non-malignancy
claims and the amount of defense costs incurred during the period.
Estimating the future cost of asbestos-related contingent liabilities was and continues to be
subject to many uncertainties, including (i) the ultimate number of claims filed; (ii) the cost of
resolving both current known and future unknown claims; (iii) the amount of insurance, if any,
available to cover such claims, including the outcome of coverage litigation against the
subsidiaries third party insurers; (iv) future earnings and cash flow of our subsidiaries; (v) the
impact of bankruptcies of other companies whose share of liability may be imposed on our
subsidiaries under certain state liability laws; (vi) the unpredictable aspects of the litigation
process including a changing trial docket and the jurisdictions in which trials are scheduled;
(vii) the outcome of any
such trials including judgments or jury verdicts, as a result of our more aggressive defense
posture which includes taking selective cases to verdict; (viii) the lack of specific information
in many cases concerning exposure to the subsidiaries products and the claimants diseases;
(ix) potential changes in applicable federal and/or state law; and (x) the potential impact of
various proposed structured settlement transactions or subsidiary bankruptcies by other companies,
some of which are the subject of federal appellate court review, the outcome of which could
materially affect any future asbestos-related liability estimates.
9
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
In fiscal 2006, we retained Crawford & Winiarski (C&W), an independent, third-party consulting
firm with expertise in the area of asbestos valuation work, to assist us in calculating an estimate
of our liability for unasserted potential future asbestos-related claims. The methodology used by
C&W to project our liability for unasserted potential future asbestos-related claims included C&W
doing an analysis of (a) widely accepted forecast of the population likely to have been exposed to
asbestos; (b) epidemiological studies estimating the number of people likely to develop
asbestos-related diseases; (c) historical rate at which mesothelioma incidences resulted in the
payment of claims by us; (d) historical settlement averages to value the projected number of future
compensable mesothelioma claims; (e) historical ratio of mesothelioma related indemnity payments to
non-mesothelioma indemnity payments; and (f) historical defense costs and their relationship with
total indemnity payments.
As a result, at the end of fiscal 2006, we recorded a liability for asbestos claims in the amount
of $335.0 million, while paying out $12.9 million for dismissals and/or settlements resulting in
our reserve moving from $99.2 million at February 28, 2006 to $421.3 million at May 31, 2006. This
reserve increase was based upon C&Ws analysis of our total estimated liability for pending and
unasserted potential future claims through May 31, 2016. This amount was calculated on a pre-tax
basis and was not discounted for the time value of money. In light of the uncertainties inherent
in making long-term projections, we have determined that a ten-year period is the most reasonable
time period over which reasonably accurate estimates might still be made for projecting asbestos
liabilities and defense costs and, accordingly, the reserve does not include asbestos liabilities
for any period beyond ten years. As of August 31, 2007, total reserves were approximately $331.4
million, of which $235.5 million was reserved for unasserted potential future claims and $95.9
million was reserved for pending known claims. The material components of the accruals are:
(i) the gross number of open malignancy claims (principally mesothelioma claims) as these claims
have the most significant impact on our asbestos settlement costs; (ii) historical and current
settlement costs and dismissal rates by various categories; (iii) analysis of the jurisdiction and
governing law of the states in which these claims are pending; (iv) outside defense counsels
opinions and recommendations with respect to the merits of such claims; and (v) analysis of
projected liability for unasserted potential future claims.
In determining the amount of our asbestos reserves, we relied on assumptions that are based on
currently known facts and projection models. Our actual expenses could be significantly higher or
lower than those recorded if assumptions used in our calculations vary significantly from actual
results. Key variables in these assumptions include the period of exposure to asbestos claims, the
number and type of new claims to be filed each year, the rate at which mesothelioma incidences
result in compensable claims against us, the average cost of disposing of each such new claim, the
dismissal rates each year and the related annual defense costs. Furthermore, predictions with
respect to these variables are subject to greater uncertainty as the projections period lengthens.
A significant upward or downward trend in the number of claims filed, depending on the nature of
the alleged injury, the jurisdiction where filed, the average cost of resolving each such claim and
the quality of the product identification, could change our estimated liability, as could any
substantial adverse verdict at trial. A federal legislative solution, further state tort reform or
structured settlement transaction could also change the estimated liability.
10
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
Subject to the foregoing variables, based on currently available data, we believe that our current
asbestos reserves are sufficient to cover asbestos-related cash flow requirements for our known
pending and unasserted potential future asbestos-related claims. However, given the uncertainties
associated with projecting matters into the future and numerous other factors outside of our
control, we believe that it is reasonably possible we may incur asbestos liabilities for the period
through 2017 and beyond in excess of our projection. Due to the uncertainty inherent in the loss
reserve estimation process, we are unable to estimate an additional range of loss in excess of our
accruals. While it is reasonably possible that such excess liabilities could be material to
operating results in any given quarter or year, we do not believe that it is reasonably possible
that such excess liabilities would have a material adverse effect on our long-term results of
operations, liquidity or consolidated financial position.
During fiscal 2004, our third-party insurers claimed exhaustion of coverage. Certain of our
subsidiaries have filed a complaint for declaratory judgment, breach of contract and bad faith
against these third-party insurers, challenging their assertion that their policies covering
asbestos-related claims have been exhausted. The coverage litigation involves, among other matters,
insurance coverage for claims arising out of alleged exposure to asbestos containing products
manufactured by the previous owner of the Bondex tradename before March 1, 1966. On March 1, 1966,
Republic Powdered Metals Inc. (as it was known then), purchased the assets and assumed the
liabilities of the previous owner of the Bondex tradename. That previous owner subsequently
dissolved and was never a subsidiary of Republic Powdered Metals, Bondex, RPM, Inc. or the Company.
Because of the earlier assumption of liabilities, however, Bondex has historically and must
continue to respond to lawsuits alleging exposure to these asbestos containing products. We
discovered that the defendant insurance companies in the coverage litigation had wrongfully used
cases alleging exposure to these pre-1966 products to erode their aggregate limits. This conduct,
apparently known by the insurance industry based on discovery conducted to date, was in breach of
the insurers policy language. Two of the defendant insurers have filed counterclaims seeking to
recoup certain monies should the plaintiffs prevail on their claims. The parties have
substantially completed all fact and expert discovery relating to the liability phase of the case.
The parties have filed dispositive motions (including motions for summary judgment) and related
briefs. It is difficult to predict when any such motions will be decided by the court or when the
court will set a definitive trial date, although our subsidiaries anticipate a ruling on these
pending motions during the 2008 fiscal year.
During last years second fiscal quarter ended November 30, 2006, Bondex reached a cash settlement
of $15.0 million, the terms of which are confidential by agreement of the parties, with one of the
defendant insurers. The settling defendant has been dismissed from the case. Our subsidiaries are
aggressively pursuing their claims against the remaining insurers based on the terms of their
respective policies.
We are unable at the present time to predict the timing or ultimate outcome of this insurance
coverage litigation or whether there will be any further settlements. Consequently, we are unable
to predict whether, or to what extent, any additional insurance may be available to cover a portion
of our subsidiaries asbestos liabilities. We have not included any potential benefits from this
litigation in calculating our current asbestos reserve. Our wholly-owned captive insurance
companies have not provided any insurance or reinsurance coverage for any of our subsidiaries
asbestos-related claims.
11
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
The following table illustrates the movement of current and long-term asbestos-related liabilities
through August 31, 2007:
Asbestos Liability Movement
(Current and Long-Term)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
|
|
|
Deductions
|
|
Balance
|
|
|
Beginning
|
|
Additions to
|
|
(Primarily
|
|
at End of
|
(In thousands)
|
|
of Period
|
|
Asbestos Charge
|
|
Claims Paid)
|
|
Period
|
|
Quarter Ended August 31, 2007
|
|
$
|
354,268
|
|
|
|
|
|
|
$
|
22,823
|
|
|
$
|
331,445
|
|
Year Ended May 31, 2007
|
|
|
421,285
|
|
|
|
|
|
|
|
67,017
|
|
|
|
354,268
|
|
Year Ended May 31, 2006
|
|
|
101,172
|
|
|
$
|
380,000
|
|
|
|
59,887
|
|
|
|
421,285
|
|
|
We provide, through our wholly-owned insurance subsidiaries, certain insurance coverage, primarily
product liability, to our other subsidiaries. Excess coverage is provided by third party insurers.
Our reserves provide for these potential losses as well as other uninsured claims. As of August
31, 2007, the current portion of these reserves amounted to $53.9 million as compared with $55.1
million at May 31, 2007, and $50.0 million at August 31, 2006; while the total long-term reserves
of $8.4 million at August 31, 2007 compare with $8.8 million at May 31, 2007 and $13.2 million at
August 31, 2006. Product warranty expense is recorded within selling, general and administrative
expense. The changes in the reserve balance have occurred primarily as a result of our continuing
evaluation of our liability under a class action lawsuit settlement covering our Dryvit residential
exterior insulated finish systems product line (EIFS). We also offer a warranty program for our
roofing systems and have established a product warranty reserve. We review this reserve for
adequacy on a quarterly basis and adjust it as necessary. The primary factors that could affect
this reserve may include changes in the historical system performance rate as well as the costs of
replacement.
Third party excess insurers have historically paid varying shares of Dryvits defense and
settlement costs for individual commercial and residential EIFS lawsuits under various cost-sharing
agreements. Dryvit has assumed a greater share of the costs associated with its EIFS litigation as
it seeks funding commitments from our third party excess insurers and will likely continue to do so
pending the outcome of coverage litigation involving these same third-party insurers. One of our
excess insurers filed suit seeking a declaration with respect to its rights and obligations for
EIFS related claims under its applicable policies. During the third quarter of fiscal 2006, the
court granted Dryvits motion to stay or dismiss the federal filing based on a more complete state
court complaint filed against these same insurers and the Companys insurance broker. The coverage
case is now proceeding in state court. Discovery in this litigation is ongoing. The trial is
scheduled for June 16, 2008. One insurer appealed the trial courts order granting Dryvit certain
discovery of allegedly privileged claim file documents, and the court of appeals dismissed the
appeal on September 12, 2007. However, the insurer has filed a
12
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
motion for reconsideration, which
may result in a continuance of the trial date when the case is returned to the trial court.
In addition, like others in similar businesses, we are involved in several proceedings relating to
environmental matters. It is our policy to accrue remediation costs when it is probable that such
efforts will be required and the related costs can be reasonably estimated. These liabilities are
undiscounted. Provision for estimated warranty costs is recorded at the time of sale and
periodically adjusted to reflect actual experience.
NOTE H PENSION AND POSTRETIREMENT HEALTH CARE BENEFITS
We account for our pension plans and postretirement benefit plans in accordance with the provisions
of Statement of Financial Accounting Standards No. 158, Employers Accounting for Defined Benefit
Pension and Other Postretirement Plans. We offer defined benefit pension plans, defined
contribution pension plans, as well as several unfunded health care benefit plans primarily for
certain of our retired employees. The following tables provide the retirement-related benefit
plans impact on income before income taxes for the three month periods ended August 31, 2007 and
2006:
Pension Benefits
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Plans
|
|
Non-U.S. Plans
|
|
|
Three Months Ended
|
|
Three Months Ended
|
|
|
August 31,
|
|
August 31,
|
|
August 31,
|
|
August 31,
|
|
|
2007
|
|
2006
|
|
2007
|
|
2006
|
|
|
|
|
|
Service cost
|
|
$
|
3,560
|
|
|
$
|
3,306
|
|
|
$
|
867
|
|
|
$
|
737
|
|
Interest cost
|
|
|
2,574
|
|
|
|
2,266
|
|
|
|
1,634
|
|
|
|
1,246
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Expected return on plan assets
|
|
|
(3,330
|
)
|
|
|
(2,857
|
)
|
|
|
(1,679
|
)
|
|
|
(1,238
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Prior service cost
|
|
|
60
|
|
|
|
48
|
|
|
|
6
|
|
|
|
6
|
|
Net actuarial (gains) losses
recognized
|
|
|
354
|
|
|
|
599
|
|
|
|
381
|
|
|
|
451
|
|
|
|
|
|
|
Net Periodic Benefit Cost
|
|
$
|
3,218
|
|
|
$
|
3,362
|
|
|
$
|
1,209
|
|
|
$
|
1,202
|
|
|
|
|
|
|
Postretirement Benifits
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Plans
|
|
Non-U.S. Plans
|
|
|
Three Months Ended
|
|
Three Months Ended
|
|
|
August 31,
|
|
August 31,
|
|
August 31,
|
|
August 31,
|
|
|
2007
|
|
2006
|
|
2007
|
|
2006
|
|
|
|
|
|
Service cost
|
|
$
|
|
|
|
$
|
|
|
|
$
|
123
|
|
|
$
|
110
|
|
Interest cost
|
|
|
130
|
|
|
|
136
|
|
|
|
168
|
|
|
|
147
|
|
Prior service cost
|
|
|
(7
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Net actuarial (gains) losses
recognized
|
|
|
|
|
|
|
(7
|
)
|
|
|
22
|
|
|
|
23
|
|
|
|
|
|
|
Net Periodic Benefit Cost
|
|
$
|
123
|
|
|
$
|
129
|
|
|
$
|
313
|
|
|
$
|
280
|
|
|
|
|
|
|
13
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
We previously disclosed in our financial statements for the fiscal year ended May 31, 2007 that we
expected to contribute approximately $10.3 million to the Retirement Plans in the U.S. and
approximately $8.7 million to plans outside the U.S. during the current fiscal year. As of August
31, 2007, we do not anticipate any changes to these contribution levels.
We have determined that our postretirement medical plan provides prescription drug benefits that
will qualify for the federal subsidy provided by the Medicare Prescription Drug, Improvement and
Modernization Act of 2003 (the Act). For all groups of retirees, we have assumed that the
subsidy will continue indefinitely.
In September 2006, the FASB issued Statement of Financial Accounting Standards (SFAS) No. 158,
Employers Accounting for Defined Benefit Pension and Other Postretirement Plans, an amendment of
FASB Statements No. 87, 88, 106 and 132(R). This statement requires an employer to recognize a
net liability or asset and an offsetting adjustment to accumulated other comprehensive income to
report the funded status of defined benefit pension and other postretirement benefit plans. This
statement also requires employers to measure plan assets and obligations at their year-end balance
sheet date. We adopted the funded status
provisions of SFAS No. 158 in our consolidated balance sheets as of May 31, 2007. We have decided
to adopt the requirement to use a May 31 measurement date for defined benefit plan measurement
beginning in fiscal 2008, with the exception of certain newly-added plans associated with
acquisitions completed during fiscal 2007, for which we had elected to apply a May 31 measurement
date as of the date of acquisition. The transition from a measurement date as of February 28 to
May 31 beginning in 2008 required us to reduce our consolidated Retained Earnings as of June 1,
2007 by $3.3 million to recognize the one-time after-tax effect of an additional three months of
net periodic benefit expense for our retirement and postretirement benefit plans. The balance sheet
adjustments as of June 1, 2007 were as follows:
|
|
|
|
|
|
|
Increase
|
(in thousands)
|
|
(Decrease)
|
|
Other long-term assets
|
|
$
|
(3,428
|
)
|
Deferred income tax liabilities
|
|
|
1,053
|
|
Other long-term liabilities
|
|
|
(12,870
|
)
|
Retained earnings
|
|
|
(3,269
|
)
|
Accumulated other comprehensive income
|
|
|
11,658
|
|
|
NOTE I INCOME TAXES
Income Tax Rate
The effective income tax expense rate was 31.8 percent for the three months ended August 31, 2007
compared to an effective income tax expense rate of 34.9 percent for the three months ended August
31, 2006.
14
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
For the three months ended August 31, 2007 and, to a lesser extent for the three months ended
August 31, 2006, the effective tax rate differed from the federal statutory rate due to decreases
in the effective tax rate principally as a result of certain tax credits and by the U.S. tax impact
of foreign operations. Furthermore, during the three months ended August 31, 2007, a decrease in
the effective income tax expense rate resulted from incremental U.S. tax benefits associated with
the domestic manufacturing deduction and lower tax rates on non-U.S. earnings. The decreases in
the effective tax rate were partially offset by valuation allowances associated with losses
incurred by certain of our foreign businesses, state and local income taxes and other
non-deductible business operating expenses. Additionally, during the three months ended August 31,
2006, the decrease in the effective tax rate was further offset by valuation allowances related to
U.S. federal foreign tax credit carryforwards.
Adoption of FIN 48
In June 2006, the FASB issued Interpretation No. 48, Accounting for Uncertainty in Income Taxes -
an interpretation of FASB Statement No. 109 (FIN 48). FIN 48, which clarifies the accounting for
uncertainty, if
any, in income taxes as recognized in financial statements in accordance with FASB Statement No.
109, Accounting for Income Taxes, represents a significant change in the accounting and reporting
of income taxes.
FIN 48 prescribes the accounting for uncertainty in income taxes by providing guidance on the
recognition threshold and measurement of a position taken in a tax return or a position expected to
be taken in a tax return. Additionally, FIN 48 provides guidance on derecognition, classification,
interest and penalties, accounting in interim periods, disclosure, and transition.
The effective date of FIN 48 is for fiscal years beginning after December 15, 2006. We adopted
this interpretation as of June 1, 2007.
The cumulative effects of applying this interpretation have been recorded as a decrease of $1.7
million to retained earnings. Our unrecognized tax benefits upon adoption were $2.8 million of
which $1.9 million would affect the effective tax rate, if recognized.
In conjunction with the adoption of FIN 48, uncertain tax positions have been classified as Other
Accrued Income Taxes, non-current unless expected to be paid in one year. We recognize interest and
penalties related to unrecognized tax benefits in income tax expense, consistent with the
accounting method used prior to adopting FIN 48. At June 1, 2007 the accrual for interest and
penalties totaled $1.3 million.
We file income tax returns in the U.S. and various state, local and foreign jurisdictions. As of
June 1, 2007, we are subject to U.S. federal income tax examinations for the fiscal years 2004
through 2007. In addition, with limited exceptions, we are subject to various state and local or
non-U.S. income tax examinations by tax authorities for the fiscal years 2002 through 2007. We do
not anticipate any significant changes to the total unrecognized tax benefits within the next 12
months.
15
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
NOTE J SEGMENT INFORMATION
We operate a portfolio of businesses and product lines that manufacture and sell a variety of
specialty paints, protective coatings and roofing systems, sealants and adhesives. We manage our
portfolio by organizing our businesses and product lines into two reportable operating segments,
the consumer segments and the industrial segment. Within each reportable operating segment,
individual groups of companies and product lines generally address common markets, utilize similar
technologies, and can share manufacturing or distribution capabilities.
Our industrial segment products are sold throughout North America and also account for the majority
of our international sales. Our industrial product lines are sold directly to contractors,
distributors and end-users, such as industrial manufacturing facilities, public institutions and
other commercial customers.
Our consumer segment manufactures and markets professional use and do-it-yourself (DIY) products
for a variety of mainly consumer applications, including home improvement, automotive maintenance
and boat
repair, and personal leisure activities. Our consumer segments major manufacturing and
distribution operations are located primarily in North America. Consumer segment products are sold
throughout North America directly to mass merchants, home improvement centers, hardware stores,
paint stores, automotive supply stores, craft shops and to other smaller customers through
distributors.
In addition to two reportable operating segments, there are certain business activities, referred
to as corporate/other, that do not constitute an operating segment, including corporate
headquarters and related administrative expenses, results of our captive insurance companies, gains
or losses on the sales of certain assets and other expenses not directly associated with either
reportable operating segment. Related assets consist primarily of investments, prepaid expenses,
deferred pension assets, and headquarters property and equipment. These corporate and other
expenses reconcile reportable operating segment data to total consolidated net sales, income before
income taxes and identifiable assets. Comparative three month results on this basis are
illustrated in the following table.
16
RPM INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 2007
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
August 31,
|
|
(In thousands)
|
|
2007
|
|
|
2006
|
|
Net Sales
|
|
|
|
|
|
|
|
|
Industrial Segment
|
|
$
|
607,953
|
|
|
$
|
545,254
|
|
Consumer Segment
|
|
|
322,386
|
|
|
|
298,907
|
|
|
|
|
|
|
|
|
Consolidated
|
|
$
|
930,339
|
|
|
$
|
844,161
|
|
|
|
|
|
|
|
|
Income (Loss) Before Income Taxes
|
|
|
|
|
|
|
|
|
Industrial Segment
|
|
$
|
79,574
|
|
|
$
|
73,934
|
|
Consumer Segment
|
|
|
42,929
|
|
|
|
41,358
|
|
Corporate/Other
|
|
|
(22,354
|
)
|
|
|
(21,007
|
)
|
|
|
|
|
|
|
|
Consolidated
|
|
$
|
100,149
|
|
|
$
|
94,285
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
August 31, 2007
|
|
|
May 31, 2007
|
|
|
|
|
|
|
|
|
Identifiable Assets
|
|
|
|
|
|
|
|
|
Industrial Segment
|
|
$
|
1,736,270
|
|
|
|
1,708,606
|
|
Consumer Segment
|
|
|
1,231,447
|
|
|
|
1,285,180
|
|
Corporate/Other
|
|
|
330,103
|
|
|
|
339,363
|
|
|
|
|
|
|
|
|
Consolidated
|
|
$
|
3,297,820
|
|
|
|
3,333,149
|
|
|
|
|
|
|
|
|
NOTE K SUBSEQUENT EVENT
Subsequent to the end of the first quarter, on September 25, 2007, one of our subsidiaries, the
StonCor Group, acquired Star Maling Group, a leading manufacturer and marketer of specialty
coatings for industrial and offshore/marine applications in Scandinavia. The acquired entity
has annual sales of approximately $30.0 million, and consists of three divisions, Star Maling,
Carboline Marine and Carboline Norge.
17
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
Our Consolidated Financial Statements include the accounts of RPM International Inc. and its
majority-owned subsidiaries. Preparation of our financial statements requires the use of estimates
and assumptions that affect the reported amounts of our assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses during the reporting period.
We continually evaluate these estimates, including those related to our asbestos liability;
allowances for doubtful accounts; inventories; allowances for recoverable taxes; useful lives of
property, plant and equipment; goodwill; environmental and other contingent liabilities; income tax
valuation allowances; pension plans; and the fair value of financial instruments. We base our
estimates on historical experience, our most recent facts, and other assumptions that we believe to
be reasonable under the circumstances. These estimates form the basis for making judgments about
the carrying values of our assets and liabilities. Actual results, which are shaped by actual
market conditions, including legal settlements, may differ from our estimates.
We have identified below the accounting policies that are critical to our financial statements.
Revenue Recognition
Revenues are recognized when realized or realizable, and when earned. In general, this is when
title and risk of loss pass to the customer. Further, revenues are realizable when we have
persuasive evidence of a sales arrangement, the product has been shipped or the services have been
provided to the customer, the sales price is fixed or determinable, and collectibility is
reasonably assured. We reduce our revenues for estimated customer returns and allowances, certain
rebates, sales incentives and promotions in the same period the related sales are recorded.
We also record revenues generated under long-term construction-type contracts, mainly in connection
with the installation of specialized roofing and flooring systems, and related services. In
general, we account for long-term construction-type contracts under the percentage-of-completion
method, and therefore record contract revenues and related costs as our contracts progress. This
method recognizes the economic results of contract performance on a timelier basis than does the
completed-contract method; however, application of this method requires reasonably dependable
estimates of progress toward completion, as well as other dependable estimates. When reasonably
dependable estimates cannot be made, or if other factors make estimates doubtful, the
completed-contract method is applied. Under the completed-contract method, billings and costs are
accumulated on the balance sheet as the contract progresses, but no revenue is recognized until the
contract is complete or substantially complete.
18
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
Translation of Foreign Currency Financial Statements and Foreign Currency Transactions
Our reporting currency is the U.S. dollar. However, the functional currency of all of our foreign
subsidiaries is their local currency. We translate the amounts included in our consolidated
statements of income from our foreign subsidiaries into U.S. dollars at weighted average exchange
rates, which we believe are fairly representative of the actual exchange rates on the dates of the
transactions. Our foreign subsidiaries assets and liabilities are translated into U.S. dollars
from local currency at the actual exchange rates as of the end of each reporting date, and we
record the resulting foreign exchange translation adjustments in our consolidated balance sheets as
a component of accumulated other comprehensive income (loss). Translation adjustments will be
included in net earnings in the event of a sale or liquidation of any of our underlying foreign
investments, or in the event that we distribute the accumulated earnings of consolidated foreign
subsidiaries. If we determined that the functional currency of any of our foreign subsidiaries
should be the U.S. dollar, our financial statements would be affected. Should this occur, we would
adjust our reporting to appropriately account for such change(s).
As appropriate, we use permanently invested intercompany loans as a source of capital to reduce
exposure to foreign currency fluctuations at our foreign subsidiaries. These loans are treated as
analogous to equity for accounting purposes. Therefore, foreign exchange gains or losses on these
intercompany loans are recorded in accumulated other comprehensive income (loss). If we were to
determine that the functional currency of any of our subsidiaries should be the U.S. dollar, we
would no longer record foreign exchange gains or losses on such intercompany loans.
Goodwill
We apply the provisions of SFAS No. 141, Business Combinations, which addresses the initial
recognition and measurement of goodwill and intangible assets acquired in a business combination.
We also apply the provisions of SFAS No. 142, Goodwill and Other Intangible Assets, which
requires that goodwill be tested on an annual basis, or more frequently as impairment indicators
arise. We have elected to perform the required impairment tests, which involve the use of
estimates related to the fair market values of the business operations with which goodwill is
associated, during our fourth fiscal quarter. Calculating the fair market value of the reporting
units requires significant estimates and assumptions by management. We estimate the fair value of
our reporting units by applying third-party market value indicators to the respective reporting
units annual projected earnings before interest, taxes, depreciation and amortization. In
applying this methodology, we rely on a number of factors, including future business plans, actual
operating results and market data. In the event that our calculations indicate that goodwill is
impaired, a fair value estimate of each tangible and intangible asset would be established. This
process would require the application of discounted cash flows expected to be generated by each
asset in addition to independent asset appraisals, as appropriate. Cash flow estimates are based
on our historical experience and our internal business plans, and appropriate discount rates are
applied. Losses, if any, resulting from goodwill impairment tests would be reflected in operating
income in our income statement.
19
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
Other Long-Lived Assets
We assess identifiable non-goodwill intangibles and other long-lived assets for impairment whenever
events or changes in facts and circumstances indicate the possibility that the carrying value may
not be recoverable. Factors considered important, which might trigger an impairment evaluation,
include the following:
|
§
|
|
significant under-performance relative to historical or projected future operating
results;
|
|
|
§
|
|
significant changes in the manner of our use of the acquired assets;
|
|
|
§
|
|
significant changes in the strategy for our overall business; and
|
|
|
§
|
|
significant negative industry or economic trends.
|
Additionally, we test all indefinitely-lived intangible assets for impairment annually. Measuring
a potential impairment of non-goodwill intangibles and other long-lived assets requires various
estimates and assumptions, including determining which cash flows are directly related to the asset
being evaluated, the useful life over which those cash flows will occur, their amount and the
assets residual value, if any. If we determine that the carrying value of these assets may not be
recoverable based upon the existence of one or more of the above-described indicators, any
impairment would be measured based on projected net cash flows expected from the asset(s),
including eventual disposition. The determination of impairment loss would be based on the best
information available, including internal discounted cash flows, quoted market prices when
available and independent appraisals as appropriate to determine fair value. Cash flow estimates
would be based on our historical experience and our internal business plans, with appropriate
discount rates applied. We have not incurred any such impairment loss to date.
Deferred Income Taxes
The provision for income taxes is calculated in accordance with SFAS No. 109, Accounting for
Income Taxes, which requires the recognition of deferred income taxes using the liability method.
Deferred income taxes reflect the net tax effect of temporary differences between the carrying
amounts of assets and liabilities for financial reporting purposes and the amounts used for income
tax purposes and certain changes in valuation allowances. We provide valuation allowances against
deferred tax assets if, based on available evidence, it is more likely than not that some portion
or all of the deferred tax assets will not be realized.
In determining the adequacy of the valuation allowance management considers cumulative and
anticipated amounts of domestic and international earnings or losses, anticipated amounts of
foreign source income, as well as the anticipated taxable income resulting from the reversal of
future taxable temporary differences.
20
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
We intend to maintain the recorded valuation allowances until sufficient positive evidence (for
example, cumulative positive foreign earnings or additional foreign source income) exists to
support a reversal of the tax valuation allowances.
Contingencies
We are party to claims and lawsuits arising in the normal course of business, including the various
asbestos-related suits discussed in Note F to our Consolidated Financial Statements. Although we
cannot precisely
predict the amount of any liability that may ultimately arise with respect to any of these matters,
we record provisions when we consider the liability probable and reasonably estimable. The
provisions are based on historical experience and legal advice, are reviewed quarterly and are
adjusted according to developments. Estimating probable losses requires analysis of multiple
forecasted factors that often depend on judgments about potential actions by third parties such as
regulators, courts and state and federal legislatures. Changes in the amount of the provisions
affect our consolidated statements of income. Due to the inherent uncertainties in the loss
reserve estimation process, we are unable to estimate an additional range of loss in excess of our
accruals. We may incur asbestos costs in addition to any amounts reserved, which may have a
material adverse effect on our financial condition, results of operations or cash flows.
Our environmental-related accruals are similarly established and/or adjusted as information becomes
available upon which costs can be reasonably estimated. Here again, actual costs may vary from
these estimates because of the inherent uncertainties involved, including the identification of new
sites and the development of new information about contamination. Certain sites are still being
investigated and, therefore, we have been unable to fully evaluate the ultimate cost for those
sites. As a result, reserves have not been taken for certain of these sites and costs may
ultimately exceed existing reserves for other sites. We have received indemnities for potential
environmental issues from purchasers of certain of our properties and businesses and from sellers
of some of the properties or businesses we have acquired. We have also purchased insurance to
cover potential environmental liabilities at certain sites. If the indemnifying or insuring party
fails to, or becomes unable to, fulfill its obligations under those agreements or policies, we may
incur environmental costs in addition to any amounts reserved, which may have a material adverse
effect on our financial condition, results of operations or cash flows.
Additionally, our operations are subject to various federal, state, local and foreign tax laws and
regulations which govern, among other things, taxes on worldwide income. The calculation of our
income tax expense is based on the best information available and involves significant management
judgment. The actual income tax liability for each jurisdiction in any year can in some instances
be ultimately determined several years after the financial statements are published.
21
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
We maintain reserves for estimated income tax exposures for many different jurisdictions. Tax
exposures are settled primarily through the resolution of audits within each tax jurisdiction or
the closing of a statute of limitation. Exposures can also be affected by changes in applicable
tax law or other factors, which may cause management to believe a revision of past estimates is
appropriate. Management believes that an appropriate liability has been established for income tax
exposures; however, actual results may materially differ from these estimates.
REPORTABLE SEGMENT INFORMATION
Our business is divided into two reportable operating segments: the consumer segment and the
industrial segment. Within each reportable operating segment, individual groups of companies and
product lines generally address common markets, utilize similar technologies, and are able to share
manufacturing or distribution capabilities. We evaluate the profit performance of our segments
based on income (loss) before income taxes, but also look to earnings (loss) before interest and
taxes (EBIT) as a performance evaluation measure because interest expense is essentially related
to corporate acquisitions, as opposed to segment operations.
In addition to the two reportable operating segments, there are certain business activities,
referred to as corporate/other, that do not constitute an operating segment, including corporate
administration and results of our captive insurance activities. In addition to the results for
these items, the category corporate/other also includes the gains or losses on the sales of
certain assets and other expenses not directly associated with either of our two reportable
operating segments. Corporate/other assets consist primarily of investments, prepaid expenses,
deferred pension assets, and headquarters property and equipment. These corporate and other
expenses reconcile reportable operating segment data to total consolidated net sales, income (loss)
before income taxes and identifiable assets. Comparative three month results on this basis are
illustrated in the following table.
22
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
August 31,
|
|
(In thousands)
|
|
2007
|
|
|
2006
|
|
Net Sales
|
|
|
|
|
|
|
|
|
Industrial Segment
|
|
$
|
607,953
|
|
|
$
|
545,254
|
|
Consumer Segment
|
|
|
322,386
|
|
|
|
298,907
|
|
|
|
|
|
|
|
|
Consolidated
|
|
$
|
930,339
|
|
|
$
|
844,161
|
|
|
|
|
|
|
|
|
Income (Loss) Before Income Taxes (a)
|
|
|
|
|
|
|
|
|
Industrial Segment
|
|
|
|
|
|
|
|
|
Income Before Income Taxes (a)
|
|
$
|
79,574
|
|
|
$
|
73,934
|
|
Interest (Expense), Net
|
|
|
(745
|
)
|
|
|
(75
|
)
|
|
|
|
|
|
|
|
EBIT (b)
|
|
$
|
80,319
|
|
|
$
|
74,009
|
|
|
|
|
|
|
|
|
Consumer Segment
|
|
|
|
|
|
|
|
|
Income Before Income Taxes (a)
|
|
$
|
42,929
|
|
|
$
|
41,358
|
|
Interest (Expense), Net
|
|
|
(853
|
)
|
|
|
(580
|
)
|
|
|
|
|
|
|
|
EBIT (b)
|
|
$
|
43,782
|
|
|
$
|
41,938
|
|
|
|
|
|
|
|
|
Corporate/Other
|
|
|
|
|
|
|
|
|
(Expense) Before Income Taxes (a)
|
|
$
|
(22,354
|
)
|
|
$
|
(21,007
|
)
|
Interest (Expense), Net
|
|
|
(11,120
|
)
|
|
|
(12,548
|
)
|
|
|
|
|
|
|
|
EBIT (b)
|
|
$
|
(11,234
|
)
|
|
$
|
(8,459
|
)
|
|
|
|
|
|
|
|
Consolidated
|
|
|
|
|
|
|
|
|
Income (Loss) Before
Income Taxes (a)
|
|
$
|
100,149
|
|
|
$
|
94,285
|
|
Interest (Expense), Net
|
|
|
(12,718
|
)
|
|
|
(13,203
|
)
|
|
|
|
|
|
|
|
EBIT (b)
|
|
$
|
112,867
|
|
|
$
|
107,488
|
|
|
|
|
|
|
|
|
|
|
|
(a)
|
|
The presentation includes a reconciliation of Income (Loss) Before Income Taxes, a measure
defined by Generally Accepted Accounting Principles (GAAP) in the U.S., to EBIT.
|
|
(b)
|
|
EBIT is defined as earnings before interest and taxes. We evaluate the profit performance of
our segments based on income before income taxes, but also look to EBIT as a performance evaluation
measure because interest expense is essentially related to corporate acquisitions, as opposed to
segment operations. We believe EBIT is useful to investors for this purpose as well, using EBIT as
a metric in their investment decisions. EBIT should not be considered an alternative to, or more
meaningful than, operating income as determined in accordance with GAAP, since EBIT omits the
impact of interest and taxes in determining operating performance, which represent items necessary
to our continued operations, given our level of indebtedness and ongoing tax obligations.
Nonetheless, EBIT is a key measure expected by and useful to our fixed income investors, rating
agencies and the banking community all of whom believe, and we concur, that this measure is
critical to the capital markets analysis of our segments core operating performance. We also
evaluate EBIT because it is clear that movements in EBIT impact our ability to attract financing.
Our underwriters and bankers consistently require inclusion of this measure in offering memoranda
in conjunction with any debt underwriting or bank financing. EBIT may not be indicative of our
historical operating results, nor is it meant to be predictive of potential future results.
|
23
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
RESULTS OF OPERATIONS
Three Months Ended August 31, 2007
Net Sales
On a consolidated basis, net sales of $930.3 million for the first quarter ended August 31, 2007
grew 10.2 percent, or $86.2 million, over net sales of $844.2 million during the same period last
year. Seven small acquisitions accounted for 3.2 percent of the growth over last year, or $27.2
million. Organic sales improvements accounted for 7.0 percent, or $59.0 million, of the growth in
net sales over the prior year, including pricing initiatives representing 1.6 percent of the sales
growth, or $13.4 million, and the impact of net favorable foreign exchange rates year-over-year
which provided 2.0 percent, or $16.5 million. Net favorable foreign exchange gains resulted
primarily from the stronger euro, but also from the Canadian dollar and certain Latin American and
Asia-Pacific currencies.
Industrial segment net sales, which comprised 65.3 percent of the current quarters consolidated
net sales, totaled $608.0 million, growing 11.5 percent from last years $545.3 million. This
segments net sales growth resulted from the combination of five small acquisitions, which
contributed 2.0 percent, plus organic sales growth, which accounted for 9.5 percent of the
increase, including 2.4 percent from pricing and 2.4 percent from net favorable foreign exchange
differences. The strong organic sales improvements in the industrial segment resulted from growth
in most international businesses, polymer flooring, and corrosion and other coatings, with much of
this growth related to ongoing industrial and commercial maintenance and improvement activities
primarily in North America, but also in Europe, Latin America and other regions of the world, as
well as increased new construction in those sectors. We continue to secure new business and grow
market share among our industrial segment operations.
Consumer segment net sales, which comprised 34.7 percent of the current quarters consolidated net
sales, increased 7.9 percent to $322.4 million from last years $298.9 million. This segments net
sales growth resulted primarily from two small acquisitions, which contributed 5.6 percent of the
growth in net sales over the prior year. Organic sales improvements provided the remaining 2.3
percent of the net sales growth, including the impact of net favorable foreign exchange, which
contributed 1.0 percent. The stable organic sales performance in the consumer segment is
principally the result of fluctuating retail buying behavior among major retail customers, offset
slightly by declines in existing homes turnover and, to a lesser extent, new housing starts, which
have affected several product lines in the consumer segment.
Gross Profit Margin
Consolidated gross profit margin improved to 41.3 percent of net sales this first quarter from 40.9
percent for the same period a year ago. While the cost of certain of our key raw materials
remained higher over the same period a year ago, such as zinc products, epoxies, and various
24
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
solvents and resins, we began to see the costs of certain of our other key materials stabilize or
decline, such as asphalts and copper. While the impact of higher raw material costs weighed on
this margin (approximately 50 basis points, or bps), there were a number of price increases that
have been initiated throughout the operating segments during the past 12 months, which more than
offset these higher costs (approximately 90 bps).
Industrial segment gross profit margin for the first quarter improved to 42.0 percent of net sales
from 41.7 percent last year. The improvement is the result of higher pricing initiatives beginning
to take hold (130 bps), partly offset by certain continued higher raw material costs during the
quarter (approximately 80 bps). Productivity gains from 4.7 percent organic unit sales growth
slightly offset increased lower-margin services sales.
Consumer segment gross profit margin for this first quarter improved to 39.9 percent of net sales
from 39.4 percent last year. This improvement, of approximately 50 bps, results from a combination
of certain key raw materials costs stabilizing over the last few recent months, a more favorable
mix of sales, and productivity gains from 1.2 percent organic unit sales growth this quarter.
Selling, General and Administrative Expenses (SG&A)
Consolidated SG&A as a percentage of sales increased to 29.1 percent of net sales compared with
28.1 percent a year ago. The increase includes the effects of foreign exchange, prior year
acquisitions, and continuing investments in various growth-related initiatives. Partly offsetting
those higher costs was the leverage from the 5.0 percent organic growth in sales, including higher
pricing, in addition to lower costs related to certain postemployment benefits and hospitalization
costs.
Industrial segment SG&A increased by 70 bps to 28.8 percent of net sales this first quarter from
28.1 percent a year ago, reflecting principally higher employment-related costs, in addition to
higher freight and warranty claims, partly offset by the leverage of organic sales growth.
Consumer segment SG&A as a percent of net sales this first quarter increased by 100 bps to 26.3
percent compared with 25.3 percent a year ago, reflecting certain higher employment-related costs,
in addition to investments in various growth initiatives.
Corporate/Other SG&A expenses increased during this years first quarter to $11.2 million from $8.5
million during last years first quarter. This increase is mainly the result of certain higher
insurance-related reserve adjustments, higher legal-related costs and additional restricted stock
grants made under the Omnibus Equity and Incentive Plan.
License fee and joint venture income of approximately $0.6 million and $0.7 million for each of the
quarters ended August 31, 2007 and 2006, respectively, are reflected as reductions of consolidated
SG&A expenses.
25
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
We recorded total net periodic pension and postretirement benefit costs of $4.9 million and $5.0
million for the quarters ended August 31, 2007 and 2006, respectively. This decreased pension
expense of $0.1 million was attributable to increased pension service and interest costs
approximating $1.1 million, offset by a combination of net actuarial gains incurred of $0.3 million
and an improvement in the expected return on plan assets of $0.9 million. We expect that pension
expense will fluctuate on a year-to-year basis depending upon the investment performance of plan
assets, but such changes are not expected to be material as a percentage of income before income
taxes.
Net Interest Expense
Net interest expense was $0.5 million lower in the first quarter of fiscal 2008 than in the
corresponding period of fiscal 2007. During last years first fiscal quarter, we prepaid our 6.61%
Senior Notes, Series B, due November 15, 2006, and our 7.30% Senior Notes, Series C, due November
15, 2008 (collectively, the Notes). This nonrecurring $1.1 million make-whole payment, combined
with our improved investment income performance year-over-year of approximately $1.7 million, more
than offset additional interest expense year-over-year of $2.3 million. The interest expense is
associated primarily with interest rates, which overall averaged 6.0 percent during the quarter,
compared with 5.4 percent in the prior year first quarter, accounting for $1.6 million of the
interest cost increase. Additionally, higher weighted-average net borrowings associated with
recent acquisitions, approximating $23.1 million, combined with slight increases in other debt,
added $0.7 million of interest cost.
Income Before Income Taxes (IBT)
Consolidated IBT for this years first quarter improved by $5.9 million, or 6.2 percent, to $100.1
million from $94.3 million during last years first quarter, with margin comparisons of 10.8
percent of net sales versus 11.2 percent a year ago.
Industrial segment IBT improved by $5.6 million, to $79.6 million from last years $73.9 million,
as a result of the favorable growth in organic sales, offset partly by higher freight and
compensation-related costs. Consumer segment IBT improved by 3.8 percent, to $42.9 million from
$41.4 million last year, as a result of the favorable impact of acquisitions, offset by certain
higher freight and compensation-related costs.
Income Tax Rate
The effective income tax expense rate was 31.8 percent for the three months ended August 31, 2007
compared to an effective income tax expense rate of 34.9 percent for the three months ended August
31, 2006.
26
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
For the three months ended August 31, 2007 and, to a lesser extent for the three months ended
August 31, 2006, the effective tax rate differed from the federal statutory rate due to decreases
in the effective tax rate principally as a result of certain tax credits and by the U.S. tax impact
of foreign operations. Furthermore, during the three months ended August 31, 2007, a decrease in
the effective income tax expense rate resulted from incremental U.S. tax benefits associated with
the domestic manufacturing deduction and lower tax rates on non-U.S. earnings. The decreases in
the effective tax rate were partially offset by valuation allowances associated with losses
incurred by certain of our foreign businesses, state and local income taxes and other
non-deductible business operating expenses. Additionally, during the three months ended August 31,
2006, the decrease in the effective tax rate was further offset by a valuation allowance related to
U.S. federal foreign tax credit carryforwards.
As of August 31, 2007, we have determined, based on the available evidence, that it is uncertain
whether we will be able to recognize certain deferred tax assets and have recorded a valuation
allowance against such deferred tax assets. The valuation allowance relates to U.S. federal
foreign tax credit carryforwards, certain foreign net operating losses and net foreign deferred tax
assets recorded in purchase accounting. We intend to maintain the valuation allowance recorded as
of August 31, 2007 for certain deferred tax assets until sufficient positive evidence (for example,
cumulative positive foreign earnings or additional foreign source income) exists to support the
reversal of the tax valuation allowance. A portion of the valuation allowance is associated with
deferred tax assets recorded in purchase accounting. Any reversal of the valuation allowance that
was recorded in purchase accounting would reduce goodwill.
Net Income
Net income of $68.3 million for the three months ended August 31, 2007 compares to $61.3 million
for the same period last year. Margin on sales of 7.3 percent during this years first quarter was
flat versus the margin for last years first quarter, mostly the result of the combination of
higher organic unit sales volume, favorable acquisitions and the impact of pricing initiatives,
offset by certain higher freight and compensation-related costs.
Diluted earnings per common share for this years first quarter improved by 8.2 percent to $0.53
from $0.49 a year ago.
LIQUIDITY AND CAPITAL RESOURCES
Cash Flows From:
Operating Activities
Operating activities generated negative cash flow of $3.0 million during first quarter of fiscal
2008 compared with $23.1 million of positive cash flow generated during the same three month
27
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
period
of fiscal 2007, a net decrease of $26.1 million. Factoring out the after-tax asbestos-related cash
payments for the first quarter of fiscal 2008 and 2007 of $14.7 million and $10.5 million,
respectively, operating activities generated positive cash flow of $11.6 million during the first
quarter of fiscal 2008 compared with $33.6 million during the same three month period a year ago,
down $22.0 million.
Operating working capital was a use of cash for this years first three months, approximating $76.4
million, versus last years first quarter use of cash of $49.3 million, resulting in an additional
use of cash of $27.1 million period-over-period. While trade accounts receivable
provided $69.0 million of cash during the current quarter versus $51.9 million last year, a $17.1
million favorable change in cash flow period-over-period, inventories required $33.0 million of
cash during the first quarter this year versus $17.4 million last year, or $15.6 million more
operating cash period-over-period. As a result of these inventory builds, associated primarily
with a challenging retail market, days outstanding in inventory increased by 9.7 days versus May
31, 2007. Additionally, accounts payable required $70.1 million in cash during the first quarter
versus $46.5 million last year, or $23.6 million additional cash period-over-period, mainly as a
result of the higher inventory levels and the timing of payments. All other remaining balance
sheet changes related to changes in working capital had a net unfavorable impact of $5.0 million.
Changes in items not affecting cash and other was a use of cash of $1.1 million.
Changes in long-term and short-term asbestos related reserves, net of taxes, of $14.7 million in
the first three months of fiscal 2008 were up $4.2 million versus $10.5 million in the comparable
period of fiscal 2007.
Cash provided from operations along with available credit lines, as required, remain our primary
source of financing internal growth, with limited use of short-term debt.
Investing Activities
Capital expenditures, other than for ordinary repairs and replacements, are made to accommodate our
continued growth through improved production and distribution efficiencies and capacity, and to
enhance administration. Capital expenditures of $5.5 million during the current quarter compare
with depreciation of $15.4 million. While we are not a capital intensive business, and capital
expenditures generally do not exceed depreciation in a given year, capital spending is expected to
slightly outpace our depreciation levels for the next several years as additional capacity is
brought on-line to support our continued growth. With this additional minor plant expansion, we
believe there will be adequate production capacity to meet our needs for the next several years at
normal growth rates.
During this years first three months, we invested a total of $3.4 million for acquisitions.
28
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
Our captive insurance companies invest in marketable securities in the ordinary course of
conducting their operations, and this activity will continue. Differences in the amounts related
to these activities on a year-over-year basis are attributable to differences in the timing and
performance of their investments.
Financing Activities
On December 29, 2006, we replaced our $330.0 million revolving credit facility with a $400.0
million 5-year credit facility (the New Facility). The New Facility will be used for working
capital needs, general corporate purposes, including acquisitions and to provide back-up liquidity
for the issuance of commercial paper. The New Facility provides for borrowings in U.S. dollars and
several foreign currencies and provides sublimits for the issuance of letters of credit in an
aggregate amount of up to $35.0 million and a swing-line of up to $20.0 million for short-term
borrowings of less than 15 days. In addition, the size of the New Facility may be expanded upon
our request by up to an additional $175.0 million, thus potentially expanding the New Facility to
$575.0 million, subject to lender approval.
On July 18, 2006, we prepaid our 6.61% Senior Notes, Series B, due November 15, 2006, and our 7.30%
Senior Notes, Series C, due November 15, 2008 (collectively, the Notes). We paid all amounts due
pursuant to the terms of the Purchase Agreement and did not incur any material early termination
penalties in connection with our termination of the Notes.
In July 2006, we amended both our accounts receivable securitization and revolving credit facility
agreements to redefine EBITDA, effective May 31, 2006.
We are exposed to market risk associated with interest rates. We do not use financial derivative
instruments for trading purposes, nor do we engage in foreign currency, commodity or interest rate
speculation. In addition to the hedge risk associated with our 6.7% Senior Unsecured Notes
discussed above, our only other hedged risks are associated with certain fixed debt whereby we have
a $200.0 million notional amount interest rate swap contract designated as a fair value hedge to
pay floating rates of interest based on six-month LIBOR that matures in fiscal 2010. Because
critical terms of the debt and interest rate swap match, the hedge is considered perfectly
effective against changes in fair value of debt, and therefore, there is no need to periodically
reassess the effectiveness during the term of the hedge.
Our available liquidity beyond our cash balance at August 31, 2007 stood at $282.9 million. Our
debt-to-capital ratio was 47.2% at August 31, 2007 compared with 47.6% at May 31, 2007. Had we been
able to reduce our total outstanding debt by all of our cash and short-term investments available
as of August 31, 2007 and May 31, 2007, our adjusted net (of cash) debt-to-capital ratio would have
been 43.0% and 43.3%, respectively.
29
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
The following table summarizes our financial obligations and their expected maturities at August
31, 2007 and the effect such obligations are expected to have on our liquidity and cash flow in the
periods indicated.
Contractual Obligations
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contractual
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payment
|
|
|
Payments Due In
|
|
|
|
Stream
|
|
|
2008
|
|
|
2009-10
|
|
|
2011-12
|
|
|
After 2012
|
|
|
Long-term debt obligations
|
|
$
|
1,024,056
|
|
|
$
|
102,322
|
|
|
$
|
229,473
|
|
|
$
|
339,371
|
|
|
$
|
352,890
|
|
Operating lease obligations
|
|
|
98,087
|
|
|
|
27,328
|
|
|
|
34,482
|
|
|
|
14,245
|
|
|
|
22,032
|
|
Other long-term liabilities
(1)
|
|
|
360,724
|
|
|
|
62,251
|
|
|
|
78,533
|
|
|
|
76,769
|
|
|
|
143,171
|
|
|
Total
|
|
$
|
1,482,867
|
|
|
$
|
191,901
|
|
|
$
|
342,488
|
|
|
$
|
430,385
|
|
|
$
|
518,093
|
|
|
|
|
|
(1)
|
|
These amounts represent our estimated cash contributions to be made in the periods
indicated for our pension and postretirement plans, assuming no actuarial gains or losses,
assumption changes or plan changes occur in any period. The projection results assume $10.3
million will be contributed to the U.S. plan in fiscal 2008; all other plans and years assume the
required minimum contribution will be contributed. Also included are expected interest payments on
long-term debt.
|
We maintain excellent relations with our banks and other financial institutions to provide
continual access to financing for future growth opportunities.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet financings, other than the minimum operating lease commitments
included per the above Contractual Obligations table. We have no subsidiaries that are not
included in our financial statements, nor do we have any interests in or relationships with any
special purpose entities that are not reflected in our financial statements.
30
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
OTHER MATTERS
Environmental Matters
Environmental obligations continue to be appropriately addressed and, based upon the latest
available information, it is not anticipated that the outcome of such matters will materially
affect the Companys results of operations or financial condition. Our critical accounting
policies and estimates set forth above describe our method of establishing and adjusting
environmental-related accruals and should be read in conjunction with this disclosure. (For
additional information, refer to Part II, Item 1. Legal Proceedings.)
FORWARDLOOKING STATEMENTS
The foregoing discussion includes forward-looking statements relating to our business. These
forward-looking statements, or other statements made by us, are made based on managements
expectations and beliefs concerning future events impacting us and are subject to uncertainties and
factors (including those specified below), which are difficult to predict and, in many instances,
are beyond our control. As a result, our actual results could differ materially from those
expressed in or implied by any such forward-looking statements. These uncertainties and factors
include (a) general economic conditions; (b) the price, supply and capacity of raw materials,
including assorted resins and solvents; packaging, including plastic containers; and transportation
services, including fuel surcharges; (c) continued growth in demand for our products; (d) legal,
environmental and litigation risks inherent in our construction and chemicals businesses and risks
related to the adequacy of our insurance coverage for such matters; (e) the effect of changes in
interest rates; (f) the effect of fluctuations in currency exchange rates upon our foreign
operations; (g) the effect of non-currency risks of investing in and conducting operations in
foreign countries, including those relating to domestic and international political, social,
economic and regulatory factors; (h) risks and uncertainties associated with our ongoing
acquisition and divestiture activities; (i) risks related to the adequacy of its contingent
liability reserves, including for asbestos-related claims; and (j) other risks detailed in our
filings with the Securities and Exchange Commission, including the risk factors set forth in our
Annual Report on Form 10-K for the year ended May 31, 2007, as the same may be updated from time to
time. We do not undertake any obligation to publicly update or revise any forward-looking
statements to reflect future events, information or circumstances that arise after the filing date
of this document.
31
RPM INTERNATIONAL INC. AND SUBSIDIARIES
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
THREE MONTH PERIOD ENDED AUGUST 31, 2007
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed to market risk from changes in interest rates and foreign exchange rates since we
fund our operations through long- and short-term borrowings and denominate our business
transactions in a variety of foreign currencies. There were no material changes in our exposure to
market risk since May 31, 2007.
ITEM 4. CONTROLS AND PROCEDURES
(a) EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES.
The Companys Chief Executive Officer and Chief Financial Officer, after evaluating the
effectiveness of the Companys disclosure controls and procedures (as defined in Exchange Act Rule
13a-15(e)) as of August 31, 2007 (the Evaluation Date), have concluded that as of the Evaluation
Date, the Companys disclosure controls and procedures were effective in ensuring that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act
(1) is recorded, processed, summarized and reported, within the time periods specified in the
Commissions rules and forms, and (2) is accumulated and communicated to the Companys management,
including the Chief Executive Officer and the Chief Financial Officer, as appropriate to allow for
timely decisions regarding required disclosure.
(b) CHANGES IN INTERNAL CONTROL.
There were no changes in the Companys internal control over financial reporting that occurred
during the fiscal quarter ended August 31, 2007 that have materially affected, or are reasonably
likely to materially affect, the Companys internal control over financial reporting.
32
RPM INTERNATIONAL INC. AND SUBSIDIARIES
PART II OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Asbestos Litigation
Certain of our wholly-owned subsidiaries, principally Bondex International, Inc. (collectively
referred to as the subsidiaries), are defendants in various asbestos-related bodily injury
lawsuits filed in various state courts with the vast majority of current claims pending in five
states Illinois, Ohio, Mississippi, Texas and Florida. These cases generally seek unspecified
damages for asbestos-related diseases based on alleged exposures to asbestos-containing products
previously manufactured by our subsidiaries or others.
Our subsidiaries vigorously defend these asbestos-related lawsuits and in many cases, the
plaintiffs are unable to demonstrate that any injuries they have incurred, in fact, resulted from
exposure to a product for which one of our subsidiaries is responsible. In such cases, the
subsidiaries are generally dismissed without payment. With respect to those cases where compensable
disease, exposure and causation are established with respect to a product for which one of our
subsidiaries is responsible, the subsidiaries generally settle for amounts that reflect the
confirmed disease, the particular jurisdiction, applicable law, the number and solvency of other
parties in the case and various other factors which may influence the settlement value each party
assigns to a particular case at the time.
As of August 31, 2007, our subsidiaries had a total of 10,957 active asbestos cases compared to a
total of 10,934 cases as of August 31, 2006. For the quarter ended August 31, 2007, our
subsidiaries secured dismissals and/or settlements of 365 claims and made total payments of $22.8
million, which included defense costs paid during the current quarter of $8.8 million. For the
comparable period ended August 31, 2006, dismissals and/or settlements covered 232 claims and total
payments were $16.4 million, which included defense costs paid during the quarter of $6.6 million.
During the quarter, the Company resolved a higher number of claims versus the prior period which
accounted for the increase in year-over-year settlement costs. The Company also had higher
year-over-year defense costs as a result of implementing various changes to the structure of its
defense counsel and in its claims intake and database management facility. To facilitate these and
related changes, the Company has necessarily incurred some duplicate costs and in some instances
accelerated the payment of certain previously incurred expenses. In this regard, the Company
estimates that it spent approximately $3.0 million more than its normal level of defense-related
expenditures due to these added transitional expenses. The Company expects similarly high cash
outlays, for the same reasons, over the next two quarters as it completes these various
defense-related initiatives. Excluding defense costs, the average costs to resolve a claim,
including dismissed claims, were $38,356 and $42,241 for each of the quarters ended August 31, 2007
and 2006, respectively. The amount and timing of dismissals and settlements can fluctuate
significantly from period to period resulting in volatility in the average costs to resolve claims
in any given quarter or year. In addition, in some jurisdictions, cases may involve more than one
individual claimant. As a result, settlement or dismissal statistics on a per case basis are not
necessarily reflective of the payment amounts on a per claimant basis and the amounts and rates can
vary widely depending on a variety of factors including the mix of
33
RPM INTERNATIONAL INC. AND SUBSIDIARIES
PART II OTHER INFORMATION
malignancy and non-malignancy
claims and the amount of defense costs incurred during the period.
For additional information on our asbestos litigation, including a discussion of our asbestos
reserve, see Note F of the Notes to Consolidated Financial Statements.
EIFS Litigation
As of August 31, 2007, Dryvit was a defendant or co-defendant in various single family residential
exterior insulated finish systems (EIFS) cases, the majority of which are pending in the
southeastern region of the country. Dryvit is also defending EIFS lawsuits involving commercial
structures, townhouses and condominiums. The vast majority of Dryvits EIFS lawsuits seek monetary
relief for water intrusion related property damages, although some claims in certain lawsuits
allege personal injuries from exposure to mold.
Dryvit is a defendant in a class action lawsuit filed on November 14, 2000 in Jefferson County,
Tennessee styled
Bobby R. Posey, et al. v. Dryvit Systems, Inc.
(formerly styled
William J.
Humphrey, et al. v. Dryvit Systems, Inc.
) (Case No. 17,715-IV) (
Posey
). A preliminary approval
order was entered on April 8, 2002 in the
Posey
case for a proposed nationwide class action
settlement which was subsequently approved after several appeals. The deadline for filing claims in
the
Posey
class action expired on June 5, 2004 and claims have been processed during the pendency
of the various appeals. On September 15, 2005, a final, non-appealable order was entered finally
approving the nationwide class. As of August 31, 2007, there were approximately 7,198 total claims
which had been filed pursuant to the Posey Class action settlement. Of
these 7,198 claims, approximately 4,410 claims have been rejected or closed for various reasons
under the terms of the settlement. Approximately 1,131 of the remaining claims are at various
stages of review and processing under the terms of the settlement and it is possible that some of
these claims will be rejected or closed without payment. As of August 31, 2007, a total of 1,657
claims have been paid for a total of approximately $13.7 million. Additional payments have and will
continue to be made under the terms of the settlement agreement which include inspection costs,
third party warranties and class counsel attorneys fees.
Third party excess insurers have historically paid varying shares of Dryvits defense and
settlement costs in the individual commercial and residential EIFS lawsuits under various
cost-sharing agreements. Dryvit has assumed a greater share of the costs associated with its EIFS
litigation as it seeks funding commitments from our third party excess insurers and will likely
continue to do so pending the outcome of coverage litigation involving these same third party
insurers. One of our excess insurers filed suit seeking a declaration with respect to its rights
and obligations for EIFS related claims under its applicable policies. During last years third
fiscal quarter, the court granted Dryvits motion to stay or dismiss the federal filing based on a
more complete state court complaint filed against these same insurers and the Companys insurance
broker. The coverage case is now proceeding in state court. Discovery in this litigation is
ongoing. The trial is scheduled for June 16, 2008. One insurer appealed the trial courts order
granting Dryvit certain discovery of allegedly privileged claim file documents, and the court of
appeals dismissed the appeal on September 12, 2007. However, the insurer has filed a motion
34
RPM INTERNATIONAL INC. AND SUBSIDIARIES
PART II OTHER INFORMATION
for
reconsideration, which may result in a continuance of the trial date when the case is returned to
the trial court. For a discussion of the existing reserves related to our Dryvit EIFS litigation,
see Note F to the Consolidated Financial Statements.
Environmental Proceedings
As previously reported, several of our subsidiaries are, from time to time, identified as a
potentially responsible party under the federal Comprehensive Environmental Response,
Compensation and Liability Act and similar state environmental statutes. In some cases, our
subsidiaries are participating in the cost of certain clean-up efforts or other remedial actions.
Our share of such costs, however, has not been material and management believes that these
environmental proceedings will not have a material adverse effect on our consolidated financial
condition or results of operations. See Item 2. Managements Discussion and Analysis of Financial
Condition and Results of Operations Other Matters, in Part I of this Quarterly Report on Form
10-Q.
ITEM 1A. RISK FACTORS
In addition to the other information set forth in this report, you should carefully consider the
risk factors disclosed in Item 1A of the Companys Annual Report on Form 10-K for the fiscal year
ended May 31, 2007.
ITEM 5. OTHER INFORMATION
Amendment of the Companys Amended and Restated By-Laws
The Company amended portions of Article VII of its Amended and Restated By-Laws on October 4, 2007
to enable the Companys shares of stock to be evidenced either by the issuance of certificates, or
by the issuance electronically of uncertificated shares. Delaware law permits the Company to issue
shares of stock without issuing physical certificates to evidence those shares. In addition, the
New York Stock Exchange recently adopted listing requirements mandating that, effective January 1,
2008, companies traded on the New York Stock Exchange, such as the Company, be eligible to issue
uncertificated shares of stock so that they may participate in a Direct Registration System which
provides for demonstration of registered share ownership other than through issuance of a paper
certificate, including by electronic means. The Companys Amended and Restated By-Laws are filed
with this report as Exhibit 3.1.
Adoption of the Companys Amended and Restated 1995 Incentive Compensation Plan
At the Companys October 4, 2007 annual meeting of stockholders, the stockholders approved the
Companys Amended and Restated 1995 Incentive Compensation Plan (the Plan). The Plan provides for
the granting of annual cash bonus awards (Bonus Awards) to those employees of the Company who in
any respective fiscal year are the Chief Executive Officer and the other three most highly
compensated officers of the Company, excluding the Chief Financial Officer (the Covered
Employees). The Plan is designed to promote the interests of the Company and its stockholders by
attracting and retaining officers who are key employees of the Company; motivating such officers
through performance-related incentives to achieve the Companys performance goals; enabling such
officers to participate in the growth and financial success of the Company; and, by qualifying the
Bonus Awards as performance-based compensation under Section 162(m) of the Internal Revenue Code,
assuring that the Company will continue to be able to deduct cash bonuses paid to the Covered
Employees.
Originally the 2007 Incentive Compensation Plan (the 2007 Plan), which was approved at the
Companys 2006 annual meeting of stockholders, was thought to provide more flexibility for annual
incentive awards, but the Compensation Committee subsequently determined that the 2007 Plan was not
a good fit for the Companys overall compensation program. Consequently, the Plan was submitted
for stockholder approval at the October 4, 2007 annual meeting of stockholders and received
stockholder approval. As a result, the 2007 Plan will terminate and the Plan will be utilized as
the primary annual cash incentive program for Covered Employees.
A description of the material features of the Plan was included in the Companys Definitive Proxy
Statement furnished in connection with its annual meeting of stockholders held on October 4, 2007.
The description of the Plan is qualified in its entirety by reference to the full text of the Plan,
which is filed as Exhibit 10.1 to this quarterly report on Form 10-Q.
On October 4, 2007, the Company issued a press release announcing, among other things, the approval by its stockholders of the Amended
and Restated 1995 Incentive Compensation Plan. A copy of the press release is filed herewith as Exhibit 99.1.
Director Retirement
As previously reported, Edward B. Brandon retired from the board of directors at the Companys October 4, 2007 annual meeting of stockholders. For further information, please see the Companys Form 8-K, dated July 17, 2007.
35
ITEM 6. EXHIBITS
RPM INTERNATIONAL INC. AND SUBSIDIARIES
PART II OTHER INFORMATION
|
|
|
|
|
Exhibit Number
|
|
|
|
Description
|
3.1
|
|
|
|
Amended and Restated By-Laws of RPM International Inc. (x)
|
|
|
|
|
|
10.1
|
|
|
|
RPM International Inc. Amended and Restated 1995 Incentive Compensation Plan. (x)
|
|
|
|
|
|
11.1
|
|
|
|
Computation of Net Income Per Share of Common Stock. (x)
|
|
|
|
|
|
31.1
|
|
|
|
Rule 13a-14(a) Certification of the Companys Chief Executive Officer. (x)
|
|
|
|
|
|
31.2
|
|
|
|
Rule 13a-14(a) Certification of the Companys Chief Financial Officer. (x)
|
|
|
|
|
|
32.1
|
|
|
|
Section 1350 Certification of the Companys Chief Executive Officer. (x)
|
|
|
|
|
|
32.2
|
|
|
|
Section 1350 Certification of the Companys Chief Financial Officer. (x)
|
|
|
|
|
|
99.1
|
|
|
|
Press Release of the Company, dated October 4, 2007, announcing, among other things, the approval by its stockholders of the Companys Amended and Restated 1995 Incentive Compensation Plan. (x)
|
36
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
|
|
|
|
|
RPM International Inc.
|
|
|
|
|
|
|
|
By
|
|
/s/ Frank C. Sullivan
|
|
|
|
|
|
|
|
Frank C. Sullivan
|
|
|
President and Chief Executive Officer
|
|
|
|
|
|
|
|
By
|
|
/s/ Ernest Thomas
|
|
|
|
|
|
|
|
Ernest Thomas
|
|
|
Senior Vice President and
Chief Financial Officer
|
|
|
|
|
|
Dated: October 9, 2007
|
|
|
|
|
Exhibit 3.1
AMENDED AND RESTATED
BY-LAWS
OF
RPM INTERNATIONAL INC.
ARTICLE I
OFFICES
Section 1.
Registered Office
. The registered office of the Company shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section 2.
Other Offices
. The Company may also have offices at such other places both
within and without the State of Delaware as the Board of Directors (the Board) may from time to
time determine or the business of the Company may require.
ARTICLE II
FISCAL YEAR
Section 1.
Fiscal Year
. The fiscal year of the Company shall end upon each May 31, or
otherwise shall be as designated by the Board.
ARTICLE III
STOCKHOLDERS
Section 1.
Annual Meeting
. The annual meeting of the stockholders for the election of
Directors, and for the transaction of any other proper business, shall be held on such date after
the annual financial statements of the Company have been prepared as shall be determined by the
Board from time to time. Only such business shall be conducted as shall have been properly brought
before the meeting. In the event that the annual meeting is not held on the date designated
therefor in accordance with this Section 1, the Directors shall cause the annual meeting to be held
as soon after that date as convenient.
Section 2.
Special Meetings
. Special meetings of the stockholders may be called at
any time by the Chairman of the Board, the President of the Company, the majority of the Board and
the Chairman of the Board or the President at the written request of stockholders owning a majority
of shares of the Voting Stock (as such term is defined in the Amended and Restated Certificate of
Incorporation (the Certificate of Incorporation)). Special meetings of holders of the
outstanding preferred stock, $0.01 par value per share, of the Company (the Preferred Stock), if
any, may be called in the manner and for the purposes provided in the applicable Preferred Stock
Designation (as such term is defined in the Certificate of
Incorporation). Calls for special meetings shall specify the purpose or purposes of the
proposed meeting, and no business shall be considered at any such meeting other than that specified
in the call therefor.
Section 3.
Place of Meetings
. All meetings of the stockholders shall be held at such
place, if any, either within or without the State of Delaware, as shall be designated in the notice
of such meeting. The Board may, in its sole discretion, determine that the meeting shall not be
held at any place, but may instead be held solely by means of remote communication as authorized by
the Delaware General Corporation Law. If authorized by the Board, and subject to such guidelines
and procedures as the Board may adopt, stockholders and proxyholders not physically present at a
meeting of stockholders may, by means of remote communication, participate and be deemed present in
person and vote at a meeting of stockholders whether such meeting is to be held at a designated
place or solely by means of remote communication, provided that: (a) the Company shall implement
reasonable measures to verify that each person deemed present and permitted to vote at the meeting
by means of remote communication is a stockholder or proxyholder; (b) the Company shall implement
reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the stockholders, including an
opportunity to read or hear the proceedings of the meeting substantially concurrently with such
proceedings; and (c) if any stockholder or proxyholder votes or takes other action at the meeting
by means of remote communication, a record of such vote or other action shall be maintained by the
Company.
Section 4.
Notice of Meetings and Adjourned Meetings
. Written or other proper notice
of any meeting of stockholders stating the place, if any, date and hour of the meeting, the means
of remote communication, if any, by which stockholders and proxyholders may be deemed to be present
in person and vote at such meeting, the information needed to access the stockholders list during
the meeting if the meeting is held by means of remote communication and the purpose or purposes for
which the meeting is called, shall be given to each stockholder entitled to vote at such meeting
not less than 10 nor more than 60 days before the date of the meeting. Without limiting the manner
by which notice otherwise may be given effectively to stockholders, any notice to stockholders
given by the Company under any provision of these Amended and Restated By-laws (the By-laws) or
otherwise shall be effective if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given; any such consent shall be deemed revoked if (a) the
Company is unable to deliver by electronic transmission two consecutive notices given by the
Company in accordance with such consent, and (b) such inability becomes known to the Secretary or
an Assistant Secretary of the Company or to the transfer agent, or other person responsible for the
giving of notice; provided, however, that the inadvertent failure to treat such inability as a
revocation shall not invalidate any meeting or other action. Notice given pursuant to the
preceding sentence shall be deemed given: (i) if by facsimile telecommunication, when directed to
a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to receive notice;
(iii) if by a posting on an electronic network together with separate notice to the stockholder of
such specific posting, upon the later of (A) such posting, and (B) the giving of such separate
notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder
in the manner consented to by the stockholder.
2
When a meeting is adjourned to another time or place, if any, notice need not be given of the
adjourned meeting if the time and place, if any, thereof, and the means of remote communication, if
any, by which stockholders and proxyholders may be deemed to be present in person and vote at such
adjourned meeting, are announced at the meeting at which the adjournment is taken. At the
adjourned meeting the Company may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
For purposes of these By-laws, electronic transmission means any form of communication, not
directly involving the physical transmission of paper, that creates a record that may be retained,
retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by
such a recipient through an automated process.
Section 5.
Stockholders List
. The officer who has charge of the stock ledger of the
Company shall prepare and make, at least 10 days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting for a period of at least 10 days prior to the meeting, either (a) on a
reasonably accessible electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the
principal place of business of the Company. If the meeting is to be held at a place, the list
shall be produced and kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present. If the meeting is to be held solely by means
of remote communication, then the list also shall be open to the examination of any stockholder
during the whole time of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice of the meeting.
Section 6.
Quorum
. At any meeting of the stockholders, except as otherwise provided
by the Delaware General Corporation Law, the Certificate of Incorporation, or these By-Laws, a
majority of the shares entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of business;
provided
, that no action required by
the Certificate of Incorporation or these By-laws to be authorized or taken by a designated
proportion of shares may be authorized or taken by a lesser proportion;
provided,
further
, that where a separate vote by a class or classes of shares is required by law, the
Certificate of Incorporation or these By-laws, a majority of the outstanding shares of such class
or classes, present in person or represented by proxy, shall constitute a quorum entitled to take
action with respect to that vote. If such quorum shall not be present or represented by proxy at
any meeting of the stockholders, the stockholders present in person or represented by proxy shall
have power to adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented by proxy.
Section 7.
Voting
. In all matters other than the election of Directors and other than
any matters upon which by express provision of the Delaware General Corporation Law, the
Certificate of Incorporation or of these By-laws a different vote is required, the vote of a
majority of the shares entitled to vote on the subject matter and present in person or represented
3
by proxy at the meeting shall be the act of the stockholders. Directors shall be elected by a
plurality of the votes of the shares entitled to vote on the election of Directors and present in
person or represented by proxy at the meeting. Except as otherwise provided in the Certificate of
Incorporation, each stockholder entitled to vote at any meeting of the stockholders shall be
entitled to one vote for each share of capital stock held by such stockholder.
Section 8.
Proxies
. Each stockholder entitled to vote at a meeting of the
stockholders may authorize, by any means permitted pursuant to the Delaware General Corporation Law
and approved by the Board, another person or persons to act for him by proxy. No such proxy shall
be voted or acted upon after three years from its date, unless the proxy provides for a longer
period.
Section 9.
Inspectors
. The Board shall, in advance of any meeting of stockholders,
appoint one or more inspectors of election to act as judges of the voting, to determine those
entitled to vote at any such meeting, or any adjournments thereof, and to make a written report of
any such meeting. The Board may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the presiding officer of the meeting may appoint one or more substitute inspectors.
Section 10.
Action of Stockholders Without a Meeting
. Pursuant to the Companys
Certificate of Incorporation, the right of the stockholders to take any action by consent in
writing without a regular or special meeting of the stockholders is expressly denied.
Section 11.
Order of Business.
The Chairman, or such other officer of the Company
designated by a majority of the Board, will call meetings of the stockholders to order and will act
as presiding officer thereof. Unless otherwise determined by the Board prior to the meeting, the
presiding officer of the meeting of the stockholders will also determine the order of business and
have the authority in his or her sole discretion to regulate the conduct of any such meeting,
including without limitation by imposing restrictions on the persons (other than stockholders of
the Company or their duly appointed proxies) that may attend any such stockholders meeting, by
ascertaining whether any stockholder or his proxy may be excluded from any meeting of the
stockholders based upon any determination by the presiding officer, in his sole discretion, that
any such person has unduly disrupted or is likely to disrupt the proceedings thereat, and by
determining the circumstances in which any person may make a statement or ask questions at any
meeting of the stockholders.
ARTICLE IV
BOARD OF DIRECTORS
Section 1.
General Powers
. The business and affairs of the Company shall be managed
by or under the direction of a Board, except as may be otherwise provided in the Delaware General
Corporation law or in the Certificate of Incorporation.
Section 2.
Number, Election, and Terms
. Subject to the rights, if any, of any series
of Preferred Stock to elect additional Directors under circumstances specified in a Preferred Stock
Designation, and to the minimum and maximum number of authorized Directors
4
provided in the Certificate of Incorporation, the authorized number of Directors may be
determined from time to time by (i) resolution of the Board adopted by the affirmative vote of a
majority of the entire Board or (ii) by the affirmative vote of the holders of a majority of shares
of the Voting Stock at any annual meeting of stockholders called for that purpose at which a quorum
is present;
provided,
however,
that the number of Directors fixed by the
stockholders at any meeting many not be greater by more than one Director than the number fixed or
authorized at the next preceding annual meeting of stockholders, and,
provided,
further,
that no reduction in the number of Directors by the stockholders shall of itself
have the effect of shortening the term of any incumbent Director. Directors may, but need not, be
stockholders. The Directors, other than those who may be elected by the holders of any series of
Preferred Stock, will be classified with respect to the time for which they severally hold office
in accordance with the Certificate of Incorporation.
Section 3.
Removal
. Subject to the rights, if any, of the holders of any series of
Preferred Stock to elect additional Directors under circumstances specified in a Preferred Stock
Designation, any Director may be removed from office by the stockholders only for cause and only in
the manner provided in the Certificate of Incorporation and, if applicable, any amendment to this
Section 3.
Section 4.
Vacancies and Newly Created Directorships
. Subject to the rights, if any,
of the holders of any series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation, newly created directorships resulting from any increase
in the number of Directors and any vacancies on the Board resulting from death, resignation,
disqualification, removal, or other cause will be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a quorum of the Board, or
by a sole remaining Director. Any Director elected in accordance with the preceding sentence will
hold office for the remainder of the full term of the class of Directors in which the new
directorship was created or the vacancy occurred and until such Directors successor is elected and
qualified. No decrease in the number of Directors constituting the Board will shorten the term of
an incumbent Director.
Section 5.
Resignation
. Any Director may resign at any time upon notice given in
writing or by electronic transmission to the Company. A resignation from the Board shall be deemed
to take effect immediately upon receipt of such notice or at such other time as the Director may
specify in such notice.
Section 6.
Annual Meeting
. Immediately following each annual meeting of stockholders
for the election of Directors, the Board may meet for the purpose of organization, the election of
officers and the transaction of other business at the place, if any, where the annual meeting of
stockholders for the election of Directors is held. Notice of such meeting need not be given.
Such meeting may be held at any other time or place, if any, which shall be specified in a notice
given as hereinafter provided for special meetings of the Board or in a consent and waiver of
notice thereof signed by all of the Directors.
Section 7.
Regular Meetings
. Regular meetings of the Board may be held at such places
(within or without the State of Delaware), if any, and at such times as the Board shall by
resolution determine. If any day fixed for a regular meeting shall be a legal holiday at the place
5
where the meeting is to be held, then the meeting which would otherwise be held on that day
shall be held at such place, if any, at the same hour and on the next succeeding business day not a
legal holiday. Notice of regular meetings need not be given.
Section 8.
Special Meetings
. Special meetings of the Board shall be held whenever
called by the Chairman of the Board, President or by any two of the Directors. Notice of each such
meeting shall be mailed to each Director, addressed to him at his residence or usual place of
business, at least three days before the day on which the meeting is to be held, or shall be sent
to him by telegram or cablegram so addressed, or shall be delivered personally or by telephone or
telecopy or other electronic or wireless means, at least 24 hours before the time the meeting is to
be held. Each such notice shall state the time and place (within or without the State of
Delaware), if any, of the meeting but need not state the purposes thereof, except as otherwise
required by the Delaware General Corporation Law or by these By-laws.
Section 9.
Quorum: Voting Adjournment
. Except as otherwise provided by the
Certificate of Incorporation or by these By-laws, a majority of the total number of Directors shall
constitute a quorum for the transaction of business at any meeting, and the vote of a majority of
the Directors present at a meeting at which a quorum is present shall be the act of the Board. In
the absence of a quorum, the Director or Directors present at any meeting may adjourn such meeting
from time to time until a quorum shall be present. Notice of any adjourned meeting need not be
given.
Section 10.
Communications
. Members of the Board, or of any committee thereof, may
participate in a meeting of such board or committee by means of conference telephone or other
communications equipment by means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this Section 10 shall constitute presence in
person at such meeting.
Section 11.
Action of Directors Without a Meeting
. Except as may be otherwise
provided for in the Certificate of Incorporation, any action required or permitted to be taken at
any meeting of the Board, or of any committee thereof, may be taken without a meeting if all
members of the Board or such committee, as the case may be, consent thereto in writing or by
electronic transmission, and such written consent or consents or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board or such committee. Such
filings shall be in paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
Section 12.
Compensation
. The Board may establish the compensation for, and
reimbursement of the expenses of, Directors for membership on the Board and on committees of the
Board, attendance at meetings of the Board or committees of the Board, and for other services by
Directors to the Company or any of its majority-owned subsidiaries. Nothing herein contained shall
be construed so as to preclude any Director from serving the Company in any other capacity, or from
serving any of its stockholders, subsidiaries or affiliated corporations in any capacity, and
receiving compensation therefor.
Section 13.
Committees
. The Board may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of three or more
6
of the Directors of the Company. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not he, she or they
constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in
the place of any such absent or disqualified member. Subject to the limitations of Section 141(c)
of the Delaware General Corporation Law, as amended from time to time (or of any successor thereto,
however denominated), any such committee, to the extent provided in the Board resolution, shall
have and may exercise the powers and authority of the Board in the management of the business and
affairs of the Company, and may authorize the seal of the Company (if any) to be affixed to all
papers which may require it. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board. Each committee shall keep regular
minutes of its meetings and report the same to the Board when required
.
ARTICLE V
NOTICES
Section 1.
Notices
. Whenever, under the provisions of the Delaware General
Corporation Law or of the Certificate of Incorporation or these By-laws, notice is required to be
given to any Director or stockholder, it shall not be necessary that personal notice be given, and
such notice may be given in writing, by mail, addressed to such Director or stockholder, at his
address as it appears on the records of the Company or at his residence or usual place of business,
with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Notice also may be given in any other proper form,
as authorized by the Delaware General Corporation Law. Notice that is given by facsimile shall be
deemed delivered when sent to a number at which any Director or stockholder has consented to
receive such notice. Notice by telegram or cablegram shall be deemed to be given when the same
shall be filed. Notice that is given in person or by telephone shall be deemed to be given when
the same shall be delivered. Without limiting the manner by which notice otherwise may be given
effectively to any Director or stockholder, any notice given under any provision of these By-laws
shall be effective if given by a form of electronic transmission consented to by such person.
Notice given by electronic mail shall be deemed delivered when directed to an electronic mail
address at which such person has consented to receive notice and notice given by a posting on an
electronic network together with separate notice to such person of such specific posting shall be
deemed delivered upon the later of (a) such posting and (b) the giving of such separate notice.
Notice given by any other form of electronic transmission shall be deemed given when directed to
any Director or stockholder in the manner consented to by such Director or stockholder.
Section 2.
Waiver of Notice
. Whenever any notice is required to be given under any
provision of the Delaware General Corporation Law or of the Certificate of Incorporation or these
By-laws, a written waiver, signed by the person or persons entitled to said notice, or a waiver by
electronic transmission by the person or persons entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person attends a
7
meeting for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened.
ARTICLE VI
OFFICERS
Section 1.
Officers
. The officers of the Company shall be a President, a Secretary, a
Treasurer and, if the Board shall so determine, or as may be deemed necessary by the Board from
time to time, a Chairman of the Board, one or more Vice Presidents and other officers and assistant
officers. The Chairman of the Board, if any, and the President, shall be chosen from among the
members of the Board; however; none of the other officers need be a Director. Any number of
offices may be held by the same person.
Section 2.
Election of Officers
. Each officer of the Company shall be elected by the
Board and shall hold office at the pleasure of the Board until his successor has been elected or
until his earlier resignation or removal.
Section 3.
Resignation
. Any officer may resign at any time by giving written notice
of his resignation to the Company. Any such resignation shall take effect immediately upon receipt
of such notice or at such other time specified in such notice. Unless otherwise specified in such
notice, the acceptance of such resignation by the Company shall not be necessary to make it
effective.
Section 4.
Removal
. Any officer may be removed at any time, either with or without
cause, by action of the Board.
Section 5.
Vacancies
. A vacancy in any office because of death, resignation, removal
or any other reason shall be filled by the Board.
Section 6.
Powers and Duties
. All officers, as between themselves and the Company,
shall have such authority and perform such duties as are customarily incident to their respective
offices, and as may be specified from time to time by the Board, regardless of whether such
authority and duties are customarily incident to such office. In the absence of any officer of the
Company, or for any other reason the Board may deem sufficient, the Board may delegate for the time
being the powers or duties of such officer, or any of them, to any other officer or to any
Director. The Board may from time to time delegate to any officer the authority to appoint and
remove subordinate officers and to prescribe their authority and duties.
Section 7.
Compensation
. The compensation of the officers and agents of the Company
shall be fixed by the Board and the Board may delegate such authority to a committee of the Board
or to any one or more officers of the Company.
8
ARTICLE VII
SHARES AND THEIR TRANSFER
Section 1.
Share Certificates
. Shares of stock of the Company may be certificated or
uncertificated, as provided under the General Corporation Law of the State of Delaware. Each
stockholder, upon written request to the transfer agent or registrar of the Company, shall be
entitled to a certificate of stock of the Company in such form as may from time to time be
prescribed by the Board, subject to applicable legal requirements. Each such certificate will be
numbered and its issuance recorded in the books of the Company, and such certificate will exhibit
the holders name and the number of shares and will be signed by, or in the name of, the Company by
the Chairman of the Board or the President and the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, and will also be signed by, or bear the facsimile signature
of, a duly authorized officer or agent of any properly designated transfer agent of the Company.
Any or all of the signatures and the seal of the Company, if any, upon such certificates may be
facsimiles, engraved, or printed. Such certificates may be issued and delivered notwithstanding
that the person whose facsimile signature appears thereon may have ceased to be such officer at the
time the certificates are issued and delivered.
Section 2.
Classes of Stock
. The designations, powers, preferences and relative,
participating, optional or other special rights of the various classes of stock or series thereof,
and the qualifications, limitations or restrictions thereof, will be set forth in full or
summarized on the face or back of the certificates which the Company issues to represent its stock
or, in lieu thereof, such certificates will set forth the office of the Company from which the
holders of certificates may obtain a copy of such information at no charge. For uncertificated
shares, the holder thereof may obtain a copy of the information described in this section upon
written request to the Company at no charge to such holder.
Section 3.
Lost, Stolen or Destroyed Certificates
. The Board may direct a new
certificate or certificates to be issued in place of any certificate or certificates theretofore
issued by the Company alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate for stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the Board may, in its
discretion and as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Company a bond in such sum as it may direct
as indemnity against any claim that may be made against the Company with respect to the certificate
or certificates alleged to have been lost, stolen or destroyed. However, if such shares have
ceased to be certificated, a new certificate shall be issued only upon written request to the
transfer agent or registrar of the Company.
Section 4.
Transfers
. Subject to any restrictions on transfer and unless otherwise
provided by the Board, shares of stock of the Company may be transferred only on the books of the
Company, if such shares are certificated, by the surrender to the Company or its transfer agent of
the certificate therefore properly endorsed or accompanied by a written assignment or power of
attorney properly executed, with transfer stamps (if necessary) affixed, or upon proper
9
instructions from the holder of uncertificated shares, in each case with such proof of the
authenticity of signature as the Company or its transfer agent may reasonably require.
Section 5.
Record Dates
. In order that the Company may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to
receive payment of any dividend or other distribution or allotment of any rights, or to exercise
any rights in respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix a record date, which record date shall not precede the date
upon which the resolution fixing such record date is adopted by the Board. In the case of (a) a
meeting, such record date also shall not be more than 60 nor less than 10 days before the date of
such meeting; or (b ) the payment of any dividend or other distribution, allotment of any rights,
exercise of any rights in respect of any change, conversion or exchange of stock or any other
lawful action, such record date also shall not be more than 60 days prior to such action. A
determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting;
provided,
however
, that
the Board may fix a new record date for the adjourned meeting.
Section 6.
Protection of Corporation
. The Company shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person registered on its
books as the owner of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VIII
BANKING
All funds of the Company not otherwise employed shall be deposited from time to time to the
credit of the Company in such banks, trust companies or other depositaries as the Board may
authorize. The Board may make such special rules and regulations with respect to such bank
accounts, not inconsistent with the provisions of these By-laws, as it may deem expedient. For the
purpose of deposit and for the purpose of collection for the account of the Company, checks, drafts
and other orders for the payment of money which are payable to the order of the Company shall be
endorsed, assigned and delivered by such person or persons and in such manner as may from time to
time be authorized by the Board.
ARTICLE IX
FORM OF RECORDS
Any records maintained by the Company in the regular course of its business, including its
stock ledger, books of account and minute books, may be kept in any manner authorized by the
Delaware General Corporation law, including by means of, or in the form of, any storage device or
method, provided that records so kept can be converted into clearly legible paper form within a
reasonable time. The Company shall so convert any records kept in such
10
manner upon the request of any person entitled to inspect such records pursuant to the Delaware
General Corporation Law.
ARTICLE X
RELIANCE ON BOOKS, REPORTS AND RECORDS
Each Director, each member of a committee designated by the Board, and each officer of the
Company will, in the performance of his or her duties, be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports, or statements
presented to the Company by any of the Companys officers or employees, or committees of the Board,
or by any other person or entity as to matters the Director, committee member, or officer believes
are within such other persons professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company.
ARTICLE XI
CORPORATE SEAL
The corporate seal of the Company shall be in circular form and shall contain the name of the
Company. Failure to affix the corporate seal to any instrument executed on behalf of the Company
shall not affect the validity of such instrument.
ARTICLE XII
EMERGENCY BY-LAWS
The Board may adopt, either before or during an emergency, as that term is defined by the
Delaware General Corporation Law, any emergency by-laws permitted by the Delaware General
Corporation Law which shall be operative only during such emergency. In the event the Board does
not adopt any such emergency by-laws, the special rules provided in the Delaware General
Corporation Law shall be applicable during an emergency as therein defined.
ARTICLE XIII
SECTION HEADINGS
The headings contained in these By-laws are for reference purposes only and shall not be
construed to be part of and shall not affect in any way the meaning or interpretation of these
By-laws.
ARTICLE XIV
AMENDMENTS
Except as otherwise provided by law or by the Certificate of Incorporation or these By-Laws,
these By-Laws or any of them may be amended in any respect or repealed at any time, either (i) at
any meeting of stockholders, provided that any amendment or supplement
11
proposed to be acted upon at any such meeting has been described or referred to in the notice
of such meeting; and
provided
,
however
, that the affirmative vote of at least 80%
of the Voting Stock, voting together as a single class, is required to amend, or repeal, or to
adopt any provision inconsistent with, Article IV, Section 2, relating to the number, election and
terms of office of Directors, or (ii) at any meeting of the Board, provided that no amendment
adopted by the Board may vary or conflict with any amendment adopted by the stockholders in
accordance with the Certificate of Incorporation and these By-Laws.
12