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EXHIBIT 2.1.1
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 is made and entered into as of the 22nd day of
June, 1994 by and among RPM, Inc., an Ohio corporation ("Parent"), RPM of
Illinois, Inc., an Illinois corporation and a wholly-owned subsidiary of Parent
("Sub"), Rust-Oleum Corporation, an Illinois corporation (the "Company") (Sub
and the Company being hereinafter collectively referred to as the "Constituent
Corporations") and the individuals and other entities set forth on Exhibit I
hereto (the "Named Shareholders").
W I T N E S S E T H:
WHEREAS, Parent, Sub, the Company and the Named Shareholders are
parties to the certain agreement and plan of merger dated as of May 3, 1994
(the "Agreement");
WHEREAS, the Section 8.3 of the Agreement provides that the Agreement
may be amended in writing by the parties thereto, by or pursuant to action
taken by their respective Boards of Directors, at any time before or after
approval of the Merger by the shareholders of the Company;
WHEREAS, Parent, Sub and the Company desire to make certain amendments
to the Agreement;
WHEREAS, the respective Boards of Directors of Parent, Sub and the
Company have approved and declared advisable this Amendment No. 1 to the
Agreement which was requested by the Secretary of State of the State of
Illinois;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. Amendments to the Agreement.
1.01. The second and third sentences of Section 1.1 of the Agreement
are deleted in their entirety.
1.02. The second and third sentences of Section 1.2 of the Agreement
are deleted in their entirety and the following two sentences are substituted:
"The Merger shall become effective when the Certificate of Merger (the
"Certificate of Merger") with respect to the Merger is issued by the
Secretary of State of the State of Illinois. When used in this Agreement,
the term "Effective Time" shall mean the time at which the
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Certificate of Merger is issued by the Secretary of State of the State
of Illinois."
1.03. The first and only sentence of Section 1.4 of the
Agreement is deleted in its entirety and the following sentence is substituted:
"The Articles of Incorporation and By-laws of the Company shall
continue to be the Articles of Incorporation and By-laws of the
Surviving Corporation until thereafter changed or amended as provided
therein or by applicable law."
1.04. The first and only sentence of Section 1.7(a) of the
Agreement is deleted in its entirety and the following sentence is substituted:
"All shares of Common Stock (as hereinafter defined) that are held in
the treasury of the Company, if any, or by any wholly-owned
Subsidiary (as hereinafter defined) of the Company shall be cancelled
and retired without payment of any consideration therefor and without
any conversion thereof and shall cease to exist."
1.05. The first and only sentence of Section 1.7(b) of the
Agreement is deleted in its entirety and the following sentence is substituted:
"Each issued and outstanding share of capital stock of Sub shall be
converted into and become one fully paid and nonassessable share of
Class A Common Stock, without par value, of the Surviving
Corporation."
1.06. The words "M&I First National Bank" are substituted for
the words "Bank One Evanston, NA" in the first sentence of Section 1.8 of the
Agreement.
1.07. The first sentence of Section 8.3 of the Agreement is
deleted in its entirety and the following sentence is substituted:
"This Agreement may be amended by the parties hereto, by or pursuant
to action taken by their respective Boards of Directors, at any time
before or after approval of the Merger by the shareholders of the
Company but, after any such approval by shareholders of the Company,
no amendment shall be made which in any way materially adversely
affects the rights of such shareholders, without the further approval
of such shareholders; PROVIDED, HOWEVER, that this Agreement may not
be amended once the Articles of Merger have been filed with the
Secretary of State of the State of Illinois. This Agreement may not
be amended except by an instrument in writing signed on behalf of each
of the parties hereto."
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SECTION 2. REFERENCE TO AND EFFECT ON AGREEMENT.
2.01. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings given to such terms in the Agreement.
2.02. Each reference in the Agreement to "this Agreement",
"hereunder", "hereof", "herein", or words of like import shall mean and be a
reference to the Agreement as amended hereby, and each reference to the
Agreement in any other document, instrument or agreement shall mean and be a
reference to the Agreement as amended hereby.
2.03 Except as specifically amended above, the Agreement
shall remain in full force and effect.
SECTION 3. EXECUTION IN COUNTERPARTS. This Amendment No. 1
may be executed in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
SECTION 4. HEADINGS. Section headings in this Amendment No.
1 are included herein for convenience of reference only and shall not
constitute part of this Amendment No. 1 for any other purpose.
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IN WITNESS WHEREOF, the undersigned have set their hands to this
Agreement or have caused this Agreement to be signed by their respective
officers thereunto duly authorized all as of the date first written above.
RPM, INC.
By Thomas C. Sullivan
Thomas C. Sullivan,
Chairman of the Board and
Chief Executive Officer
Attest:
William A. Papenbrock
Name: William A. Papenbrock
Title: Assistant Secretary
RPM OF ILLINOIS, INC.
By Thomas C. Sullivan
Thomas C. Sullivan,
President
Attest:
William A. Papenbrock
Name: William A. Papenbrock
Title: Assistant Secretary
RUST-OLEUM CORPORATION
By Donald C. Fergusson
Donald C. Fergusson
Chairman and President
Attest:
Michael T. Murphy
Name: Michael T. Murphy
Title: Secretary
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DCF INVESTMENTS, L. P.,
A DELAWARE LIMITED
PARTNERSHIP
By: MPF Dynasty Trust for
Donald, General Partner
By: Donald C. Fergusson
Donald C. Fergusson,
not individually but
solely as Trustee
JFP INVESTMENTS, L. P.,
A DELAWARE LIMITED
PARTNERSHIP
By: MPF Dynasty Trust for
Jeanne, General Partner
By: Jeanne F. Pettry
Jeanne F. Pettry,
not individually but
solely as Trustee
SEF INVESTMENTS, L. P.,
A DELAWARE LIMITED
PARTNERSHIP
By: BAH Dynasty Trust for
Sue, General Partner
By: Sue Ellen Fergusson
Sue Ellen Fergusson,
not individually but
solely as Trustee
LAM INVESTMENTS, L. P.,
A DELAWARE LIMITED
PARTNERSHIP
By: BAH Dynasty Trust for
Laurel, General Partner
By: Laurel McKahan
Laurel McKahan
not individually but
solely as Trustee
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THE JFP DYNASTY TRUST
U/A/D 12/29/93
By: Sue Ellen Fergusson
Sue Ellen Fergusson,
not individually but
solely as Trustee
THE JEANNE F. PETTRY 1988
FAMILY GIFT TRUST
By: Jeanne F. Pettry
Jeanne F. Pettry,
not individually but
solely as Trustee
THE DONALD C. FERGUSSON
1988 FAMILY GIFT TRUST
By: Donald C. Fergusson
Donald C. Fergusson,
not individually but
solely as Trustee
JEANNE F. PETTRY
Jeanne F. Pettry
Jeanne F. Pettry
DONALD C. FERGUSSON
Donald C. Fergusson
Donald C. Fergusson