Exhibit 1.2
SPARTECH CORPORATION
COMMON STOCK, PAR VALUE $.75 PER SHARE
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UNDERWRITING AGREEMENT
January 28, 2004
Xxxxxxx, Xxxxx & Co.,
Deutsche Bank Securities Inc.,
McDonald Investments Inc., A KeyCorp Company,
First Analysis Securities Corporation,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Spartech Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
1,917,164 shares and, at the election of the Underwriters, up to 1,095,000
additional shares of Common Stock, par value $.75 per share, of the Company
("Stock"), and Vita International Limited, a limited liability company
incorporated under the laws of England (a wholly-owned subsidiary of British
Vita PLC), and a stockholder of the Company named in Schedule II hereto (the
"Selling Stockholder"), proposes, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of 5,382,836 shares of Stock.
The aggregate of 7,300,000 shares to be sold by the Company and the Selling
Stockholder is herein called the "Firm Shares" and the aggregate of 1,095,000
additional shares to be sold by the Company is herein called the "Optional
Shares". The Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are herein collectively called the
"Shares".
1. (a) The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-109682) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to you, and,
excluding exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein, to you for each of the
other Underwriters have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size of
the offering (a "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Securities Act of 1933,
as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the
Representatives named in Schedule I hereto (the "Representatives")); and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or, to the Company's knowledge, threatened by
the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the Initial Registration
Statement at the time such part of the Initial Registration Statement
became effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes, effective,
are hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Shares, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Initial Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by reference in
the Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the Shares in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(ii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Shares;
(iii) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to the Shares, or by
the Selling Stockholder expressly for use in the preparation of the
answers therein to Item 7 of Form S-3;
(iv) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(v) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries;
(vi) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Delaware, with power
and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction; and each subsidiary of the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation;
(vii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the Stock contained
in the Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares and except as set forth in the Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(viii) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and non-assessable and will conform
to the description of the Stock contained in the Prospectus;
(ix) The issue and sale of the Shares to be sold by the Company and
the compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions herein contemplated will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, except for
any such breach or violation that would not, individually or in the
aggregate, have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken together as a whole,
provided, that any such breach or violation does not affect the validity
of the Shares; or (ii) result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act, by the
National Association of Securities Dealers, Inc. (the "NASD") or under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(x) Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation or By-laws or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound, except for any such
default under any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument that would not, individually or in
the aggregate, have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken together as a whole;
(xi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(xii) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xiii) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xiv) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of or liable under any statute,
any rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws and the Company is not aware of any pending
investigation which might lead to such a claim which violation,
contamination, liability or claim would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken together as a whole;
(xv) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
(xvi) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company and its subsidiaries, were independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder at all times at which they certified financial
statements of the Company and its subsidiaries.
(b) The Selling Stockholder represents and warrants to, and agrees
with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by the Selling Stockholder of this Agreement
and for the sale and delivery of the Shares to be sold by the Selling
Stockholder hereunder, have been obtained; and the Selling Stockholder has
full right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Shares to be sold by the Selling
Stockholder hereunder;
(ii) The sale of the Shares to be sold by the Selling Stockholder
hereunder and the compliance by the Selling Stockholder with all of the
provisions of this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any statute (other than state securities or Blue Sky laws),
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property or assets of
the Selling Stockholder is subject, nor will such action result in any
violation of the provisions of the Memorandum of Association or Articles
of Association of the Selling Stockholder or any statute (other than state
securities or Blue Sky laws) or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Selling
Stockholder or the property of the Selling Stockholder;
(iii) The Selling Stockholder has, and immediately prior to the
First Time of Delivery (as defined in Section 4 hereof) the Selling
Stockholder will have, good and valid title to the Shares to be sold by
the Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares and
payment therefor pursuant hereto, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or claims, will pass
to the several Underwriters;
(iv) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any shares of Stock, any securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities, without your prior written consent;
(v) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which would reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Shares or any amendment or supplement
thereto are made in reliance upon and in conformity with written
information furnished to the Company by the Selling Stockholder expressly
for use therein, such Preliminary Prospectus and the Registration
Statement did, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Stockholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-8BEN or W-8ECI, as
applicable; and
(viii) The obligations of the Selling Stockholder hereunder shall
not be terminated by operation of law, whether by the dissolution of such
corporation, or by the occurrence of any other event; if such corporation
should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of the Selling Stockholder in
accordance with the terms and conditions of this Agreement.
2. Subject to the terms and conditions herein set forth, (a) the Company
and the Selling Stockholder agree, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholder, at a purchase
price per share of $22.86, the number of Firm Shares (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying the aggregate
number of Shares to be sold by the Company and the Selling Stockholder as set
forth opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the aggregate number of Firm Shares to
be purchased by all of the Underwriters from the Company and the Selling
Stockholder hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the purchase price per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company, as and to the extent indicated in Schedule II hereto, hereby
grants to the Underwriters the right to purchase at their election up to
1,095,000 Optional Shares, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering sales of shares in excess of
the number of Firm Shares. Any such election to purchase Optional Shares shall
be made in proportion to the maximum number of Optional Shares to be sold by the
Company as set forth in Schedule II hereto. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you,
but in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. may request upon at least two business days' prior
notice to the Company and the Selling Stockholder shall be delivered by or on
behalf of the Company and the Selling Stockholder to Xxxxxxx, Xxxxx & Co.,
through the facilities of The Depository Trust Company ("DTC"), for the account
of such Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company and the Selling Stockholder as their interests
may appear, to Xxxxxxx, Sachs & Co. at least two business days in advance. The
Company will cause the certificates representing the Shares to be made available
for checking and packaging at least two business days prior to the Time of
Delivery (as defined below) with respect thereto at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 A.M., New
York time, on February 3, 2004 or such other time and date as Xxxxxxx, Xxxxx &
Co., the Company and the Selling Stockholder may agree upon in writing, and,
with respect to the Optional Shares, 9:30 A.M., New York time, on the date
specified by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx
& Co. of the Underwriters' election to purchase such Optional Shares, or such
other time and date as Xxxxxxx, Sachs & Co. and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(m) hereof, will be delivered at the offices
of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Closing Location"), and the Shares will be delivered at the Designated Office,
all at such Time of Delivery. A meeting will be held at the Closing Location at
3:00 P.M., New York City time, on the New York Business Day next preceding such
Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended and supplemented in
relation to the Shares in a form approved by the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment or any supplement
to the Registration Statement or Prospectus as amended or supplemented after the
date of this Agreement and prior to the last Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof; to advise you
promptly of any such amendment or supplement after such Time of Delivery and
furnish you with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares, and during such same period to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares, of the suspension
of the qualification of the Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Shares or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to time,
to furnish the Underwriters with written and electronic copies of the Prospectus
as amended or supplemented in New York City in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at any time
in connection with the offering or sale of the Shares and if at such time any
event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order
to comply with the Act or the Exchange Act, to notify you and upon your request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and electronic
copies as you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or omission
or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of this Agreement, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any shares of Stock, any securities of the Company that are
substantially similar to the Shares, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than pursuant
to employee stock option plans existing on, or upon the conversion or exchange
of convertible or exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent;
(f) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange (the "Exchange");
(j) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by
10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act; and
(k) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's corporate
logo for use on the website, if any, operated by such Underwriter for the
purpose of facilitating the on-line offering of the Shares (the "License");
provided, however, that the License shall be used solely for the purpose
described above, is granted without any fee and may not be assigned or
transferred.
6. The Company and the Selling Stockholder covenant and agree with one
another and with the several Underwriters that (a) the Company and the Selling
Stockholder will pay or cause to be paid a pro rata share (based on the number
of Shares to be sold by the Company and the Selling Stockholder hereunder) the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
reproducing any Agreement among Underwriters, this Agreement, the Blue Sky
Memorandum and the cost of printing or producing closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; and (iv) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, securing any required review by the NASD of the terms of the
sale of the Shares; (b) the Company will pay or cause to be paid: (i) the cost
of preparing stock certificates; (ii) the cost and charges of any transfer agent
or registrar and (iii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section; and (iv) all fees and expenses in connection with listing the
Shares on the Exchange; and (c) the Selling Stockholder will pay or cause to be
paid all costs and expenses incident to the performance of the Selling
Stockholder's obligations hereunder which are not otherwise specifically
provided for in this Section, including (i) any fees and expenses of counsel for
the Selling Stockholder and (ii) all expenses of the Selling Stockholder and
taxes incident to the sale and delivery of the Shares to be sold by the Selling
Stockholder to the Underwriters hereunder. It is understood, however, that the
Company shall bear, and the Selling Stockholder shall not be required to pay or
to reimburse the Company for, the cost of any other matters not directly
relating to the sale and purchase of the Shares pursuant to this Agreement, and
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholder herein are, at and as of such Time of
Delivery, true and correct, the condition that
the Company and the Selling Stockholder shall have performed all of its and
their obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Company, the Shares, the due
authorization, execution and delivery of this Agreement and with respect to the
Registration Statement, the Prospectus and such other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxxxxx Xxxxxxxx LLP, counsel for the Company, shall have
furnished to you its written opinion (a draft of such opinion is attached as
Annex II(a) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company (including the Shares being delivered at such
Time of Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; and the Shares conform to the description
of the Stock contained in the Prospectus as amended or supplemented;
(iii) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of failure to be so qualified
in any such jurisdiction (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you and
they are justified in relying upon such opinions and certificates);
(iv) Each subsidiary of the Company has been duly organized and is
validly existing and in good standing under the laws of its jurisdiction
of incorporation or
formation; and all of the issued shares of capital stock of each such
subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable, and (except for directors' qualifying shares and
except as otherwise set forth in the Prospectus) all of the issued shares
of capital stock of each subsidiary and the membership and partnership
interests of each subsidiary are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement has been duly authorized, executed and delivered
by the Company;
(vii) The issue and sale of the Shares being delivered at such Time
of Delivery to be sold by the Company and the compliance by the Company
with all of the provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the Company
or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement, except such as
have been obtained under the Act, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act, by the NASD or under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(ix) Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation or By-laws or, to the best of such
counsel's knowledge, in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan
agreement, or lease or agreement or other instrument to which it is a
party or by which it or any of its properties may be bound;
(x) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to summarize the
provisions of the laws and documents referred to therein, are accurate,
complete and fair in all material respects;
(xi) The Company is not an "investment company", as such term is
defined in the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and they have no reason to believe that any
of such documents, when such documents became effective or were so filed,
as the case may be, contained, in the case of a registration statement
which became effective under the Act, an untrue statement of a material
fact, or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the case
of other documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading; and
(xiii) The Registration Statement, as of its effective date, and the
Prospectus, as amended or supplemented, and any further amendments and
supplements thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (x) of this
Section 7(c), they have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data therein, as to
which such counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules and other financial data therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the Registration
Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and they do
not know of any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or supplemented
or required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or incorporated
by reference or described as required;
(d) Milbank, Tweed, Xxxxxx & XxXxxx LLP, special United States
counsel for the Selling Stockholder, shall have furnished to you its written
opinion with respect to the Selling Stockholder (a draft of such opinion is
attached as Annex II(b) hereto), dated the First Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) This Agreement has been duly delivered by the Selling
Stockholder;
(ii) The sale of the Shares to be sold by the Selling Stockholder
hereunder and the compliance by the Selling Stockholder with all of the
provisions of this Agreement and the consummation by it of the
transactions herein contemplated will not conflict with any laws of the
United States or New York that in our experience are normally applicable
to transactions of the type contemplated by the Underwriting Agreement nor
will such action result in any violation of any order, rule or regulation
known to such counsel of any court or United States or New York
governmental agency or body having jurisdiction over the Selling
Stockholder or the property of the Selling Stockholder;
(iii) No consent, approval, authorization or order of any United
States or New York governmental agency or body is required for the
consummation by the Selling Stockholder of the transactions contemplated
by this Agreement in connection with the Shares to be sold by the Selling
Stockholder hereunder, except for such consents, approvals, authorizations
or orders which have been duly obtained and are in full force and effect,
such as have been obtained under the Act and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of such Shares by the Underwriters; and
(iv) Good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred to each of
the several Underwriters who have purchased such Shares in good faith and
without notice of any such lien, encumbrance, equity or claim or any other
adverse claim within the meaning of the Uniform Commercial Code;
(e) Ashurst, United Kingdom counsel for the Selling Stockholder, and
in-house counsel of the Selling Stockholder shall have furnished to you their
written opinion with respect to the Selling Stockholder (drafts of such opinions
are attached as Annex II(c) hereto),
dated the First Time of Delivery, each in form and substance satisfactory to
you, to the effect that:
(i) The Selling Stockholder is a limited liability company, duly
incorporated and subsisting under the laws of England and, so far as is
discoverable from public records of the Companies Registry, is not in
liquidation;
(ii) The Selling Stockholder has all requisite corporate power to
enter into, execute, deliver and perform its obligations under this
Agreement and has taken all necessary corporate action to authorize the
entry into, execution, delivery and performance of its obligations under
this Agreement and has duly executed this Agreement;
(iii) The sale of the Shares to be sold by the Selling Stockholder
hereunder and the compliance by the Selling Stockholder with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any terms or provisions of, or constitute a default under,
any English statute applicable to English companies generally, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of the
property or assets of the Selling Stockholder is subject, nor will such
action result in any violation of the provisions of the Memorandum of
Association or Articles of Association of the Selling Stockholder; and
(iv) No consent, approval, authorization or order of any English
court or governmental agency or body is required for the consummation of
the transactions contemplated by this Agreement in connection with the
Shares to be sold by the Selling Stockholder hereunder, except for such
consents, approvals, authorizations or orders which have been duly
obtained and are in full force and effect in connection with the purchase
and distribution of such Shares by the Underwriters;
(f) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 A.M., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent to
the date of this Agreement and also at each Time of Delivery, (i) Ernst & Young
LLP shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, to the effect
set forth in Annex I hereto (the executed copy of the letter delivered prior to
the execution of this Agreement is attached as Annex I(a) hereto and a draft of
the form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto), and (ii) the Chief Financial Officer of the
Company shall have furnished to you a certificate or certificates, dated the
respective times of delivery thereof, in form and substance satisfactory to you,
to the effect set forth in Annex II(d) hereto;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as amended
or supplemented there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus as amended or supplemented, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at such Time
of Delivery on the terms and in the manner contemplated in the Prospectus as
amended or supplemented;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event specified in
clause (iv) or (v) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(j) The Shares at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the Exchange;
(k) The Company shall have obtained and delivered to the
Underwriters executed copies of an agreement from each of the executive officers
and directors of the Company, substantially in the form of Annex III hereto;
(l) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(m) The Company and the Selling Stockholder shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of the Selling Stockholder, respectively, satisfactory to you
as to the accuracy of the representations and warranties of the Company and the
Selling Stockholder, respectively, herein at and as of such Time of Delivery, as
to the performance by the Company and the Selling Stockholder of all
of their respective obligations hereunder to be performed at or prior to such
Time of Delivery, and as to such other matters as you may reasonably request,
and the Company shall have furnished or caused to be furnished certificates as
to the matters set forth in subsections (a) and (g) of this Section.
8. (a) The Company and the Selling Stockholder will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Shares, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and the Selling Stockholder shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein; provided, further, that the liability
of the Selling Stockholder pursuant to this subsection 8(a) shall not exceed the
product of the number of Shares sold by the Selling Stockholder and the initial
public offering price of the Shares as set forth in the Prospectus as amended or
supplemented.
(b) Each Underwriter will indemnify and hold harmless the Company
and the Selling Stockholder against any losses, claims, damages or liabilities
to which the Company or the Selling Stockholder may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Shares or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and the Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or the Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholder on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Stockholder bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Selling Stockholder on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Selling Stockholder and the Underwriters agree that it would not be just and
equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Selling Stockholder under
this Section 8 shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his or her
consent, is named in the Registration Statement as about to become a director of
the Company) and to each person, if any, who controls the Company or any Selling
Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company and the Selling Stockholder shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Stockholder that you have so arranged for the purchase of such
Shares, or the Company and the Selling Stockholder notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholder shall have the right to postpone a Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholder as provided in subsection (a) above, the aggregate
number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company and the
Selling Stockholder shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholder as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Stockholder shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholder, except for the expenses
to be borne by the Company and the Selling Stockholder and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholder and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or the Selling Stockholder, or any officer or
director or controlling person of the Company, or any controlling person of any
Selling Stockholder, and shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholder shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Stockholder as provided herein, the Company and the
Selling Stockholder pro rata (based on the number of Shares to be sold by the
Company and the Selling Stockholder hereunder) will reimburse the Underwriters
through you for all out-of-pocket expenses approved in writing by you, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and the Selling Stockholder shall then be under no
further liability to any Underwriter in respect of the Shares not so delivered
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you in care of Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if to the Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to counsel for the Selling Stockholder at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholder by you on request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholder and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company, the Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
17. The Company and the Selling Stockholder are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. Federal income tax benefits expected to
be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits,
without the Underwriters imposing any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us one counterpart for each of the Company, the Selling Stockholder
and the Representatives plus one for each counsel, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and the Selling Stockholder. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is pursuant
to the authority set forth in a form of Agreement among Underwriters, the form
of which shall be submitted to the Company and the Selling Stockholder for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
Spartech Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman, President and
Chief Executive Officer
Vita International Limited
By: /s/ X.X. Xxxxxxxx
-----------------------------------
Name: X.X. Xxxxxxxx
Title: Chief Executive
Accepted as of the date hereof
in New York, New York:
Xxxxxxx, Sachs & Co.
Deutsche Bank Securities Inc.
McDonald Investments Inc., A KeyCorp Company
First Analysis Securities Corporation
By: /s/ Xxxxxxx, Sachs & Co.
-------------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
SCHEDULE I
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- --------------
Xxxxxxx, Sachs & Co............................ 2,496,600 374,490
Deutsche Bank Securities Inc................... 1,971,000 295,650
McDonald Investments Inc., A KeyCorp Company... 1,314,000 197,100
First Analysis Securities Corporation.......... 788,400 118,260
Credit Lyonnais Securities (USA) Inc........... 365,000 54,750
NatCity Investments, Inc....................... 365,000 54,750
------------ ---------------
Total.................................... 7,300,000 1,095,000
============ ===============
SCHEDULE II
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- --------------
The Company.................................... 1,917,164 1,095,000
The Selling Stockholder:...................
Vita International Limited........... 5,382,836 ----
Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxx X00 0XX
Xxxxxxx
------------ ------------
Total................................... 7,300,000 1,095,000
============ ============
ANNEX I
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been separately
furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their
reports thereon, copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in
the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified
by the Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
ANNEX II(a)
FORM OF OPINION OF XXXXXXXXX XXXXXXXX LLP
February __, 2004
Xxxxxxx, Sachs & Co.,
Deutsche Bank Securities Inc.,
McDonald Investments Inc., A KeyCorp Company,
First Analysis Securities Corporation,
as representatives of the several Underwriters
named in Schedule I thereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
RE: SPARTECH CORPORATION PUBLIC OFFERING OF COMMON STOCK
Ladies and Gentlemen:
We have acted as counsel to Spartech Corporation, a Delaware corporation
(the "Company"), in connection with the public offering and sale by the Company
of _______ shares of the Company's Common Stock, par value $0.75 per share, (the
"Shares") pursuant to that certain Underwriting Agreement dated January __, 2004
(the "Underwriting Agreement"), by and among the Company, Xxxxxxx, Xxxxx & Co.,
Deutsche Bank Securities Inc., McDonald Investments Inc., A KeyCorp Company, and
First Analysis Securities Corporation as representatives of the several
underwriters named therein (the "Underwriters"), and the selling stockholders
set forth in Schedule II thereto. We render this opinion pursuant to Section
7(c) of the Underwriting Agreement. Capitalized terms used herein but not
otherwise defined herein shall have the meanings set forth or referenced in the
Underwriting Agreement.
As a basis for rendering this opinion, we have reviewed the following:
1. Certified or other copies identified to our satisfaction of such
proceedings and other documents as relate to the offering and sale of the
Shares by the Company and as relate to the authorizations on behalf of the
Company with respect to the execution and delivery of the Underwriting
Agreement; the execution and filing of a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Act"), with the
Securities and Exchange Commission (the "Commission") on October 14, 2003
(File No. 333-109682), and the related Prospectus and preliminary and
final Prospectus Supplements relating to the Shares, in the preparation of
which we have participated (the registration statement, as amended,
including all documents filed as a part thereof or incorporated therein,
being herein called the "Registration Statement", and the Prospectus and
the final Prospectus Supplement being herein called the "Prospectus");
2. Executed copies or counterparts of the Underwriting Agreement and the
Registration Statement, and the Prospectus;
3. Certificates from public officials as to the due organization of the
Company and its subsidiaries and as to the good standing of the Company;
4. Certified copies of the Company's Restated Certificate of Incorporation,
Bylaws and applicable resolutions of the Company's Board of Directors
adopted on October 9, 2003, 2002 and of the Pricing Committee of the Board
of Directors adopted on January 28, 2004; and
5. Certificates of officers of the Company delivered at Closing.
The documents referred to in items (1) and (2) above are hereinafter
collectively referred to as the "Offering Documents."
In addition, we have reviewed such other documents and made such other
investigation as we have deemed necessary to render the opinions expressed
below.
In rendering the opinions hereinafter expressed, we have made the
following assumptions:
a. All parties to the Offering Documents, other than the Company, are
duly organized, validly existing and in good standing under the laws
of the states or governmental bodies under which they are organized.
b. Each of the Offering Documents has been duly authorized, executed
and delivered by all of the parties thereto other than the Company.
c. The Offering Documents, except as such relate to the Company,
constitute legal, valid and binding obligations of the parties
thereto enforceable against such parties in accordance with their
terms, and all parties to the Offering Documents, except for the
Company, have all necessary power and authority to enter into and
perform the transactions contemplated thereby.
d. The execution, delivery and performance of the Offering Documents by
any party thereto, other than the Company, will not result in any
violation of or be in contravention of or constitute a default under
the charter, bylaws or other governing documents of such party, or
any other contract or agreement binding on such party or its
properties.
e. All signatures, other than those of officers and directors of the
Company, are genuine, all documents submitted to us as originals are
authentic, and all documents submitted to us as photocopies,
telecopies or facsimiles conform to the original documents.
As to various questions of fact material to our opinions, we have relied
upon certificates from officers of the Company which we deem necessary or
appropriate in connection with our opinions.
Based upon the foregoing and subject to the qualifications, limitations
and assumptions stated herein, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware, with the
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
2. The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares) have been duly and validly authorized
and issued and are fully paid and non-assessable, and the Shares
conform to the description of the Stock contained in the Prospectus;
3. The Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of failure
to be so qualified in any such jurisdiction;
4. Each subsidiary of the Company has been duly organized and is
validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation; and all of the issued
shares of capital stock of each such subsidiary have been duly
and validly authorized and issued, are fully paid and
non-assessable, and except for directors' qualifying shares and
except as otherwise set forth in the Prospectus, all of the
issued shares of capital stock of each subsidiary and the
membership and partnership interests of each subsidiary are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
5. To the best of our knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries and, to the
best of our knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
7. The issue and sale of the Shares to be sold by the Company and
the compliance by the Company with all of the provisions of the
Underwriting Agreement, and the consummation of the transactions
therein contemplated, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
us to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of
Incorporation or Bylaws of the Company or any statute or any
order, rule or regulation known to us of any court or
governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties;
8. No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by
the Underwriting Agreement, except such as has been obtained
under the Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
by the National Association of Securities Dealers, Inc or under
state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
9. Neither the Company nor any of its subsidiaries is in violation of
its charter documents or Bylaws or, to the best of our knowledge, in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, or lease or agreement or
other instrument to which it is a party or by which it or any of its
properties may be bound;
10. The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the
captions "Plan of Distribution" and "Underwriting", insofar as they
purport to summarize the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all material
respects;
11. The Company is not an "investment company", as such term is
defined in the Investment Company Act;
12. The documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior
to the date hereof (other than the financial statements and
related schedules therein, as to which we express no opinion)
when they became effective or were filed with the Commission, as
the case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and we have no reason to believe that any of such
documents, when such documents became effective or were so filed,
as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue
statement of a material fact, or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents which
were filed under the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such
documents were so filed, not misleading; and
13. The Registration Statement, as of its effective date, and the
Prospectus, as of its date, and any further amendments and
supplements thereto made by the Company prior to the date hereof
(other than the financial statements and related schedules and
other financial data therein, as to which we express no opinion)
complied as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder;
and we have no reason to believe that, as of its effective date,
the Registration Statement or any further amendment thereto made
by the Company prior to the date hereof (other than the financial
statements and related schedules and other financial data therein
as to which we express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company prior
to the date hereof (other than the financial statements and
related schedules and other financial data therein, as to which
we express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of the
date hereof, either the Registration Statement or the Prospectus
or any further amendment or supplement thereto made by the
Company prior to the date hereof (other than the financial
statements and related schedules and other financial data
therein, as to which we express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and we
do not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated
by reference or described as required.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the State of Missouri, the General Corporation Law of
the State of Delaware and the United States of America. The opinions set forth
in this letter are limited to the present laws of the State of Missouri, the
present laws of the State of Delaware and the present federal laws of the United
States, and are based on the facts as they presently exist. No opinion is
expressed by us as to matters of conflict or choice of law. We undertake no
obligation to advise you as a result of developments occurring after the date
hereof or as a result of facts or circumstances brought to our attention after
the date hereof. We do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, except for
those referred to in Paragraph 10 above.
The qualification of any opinion or statement herein by the use of the
words "to our knowledge" or similar phrase means that, during the course of our
representation of the Company, no information has come to our attention which
gives us the factual knowledge of the existence of the matters, actions,
proceedings, items, documents or facts so qualified, it being understood that in
determining the extent of such knowledge we have limited our procedures to an
endeavor to determine the knowledge of lawyers presently in our firm who have
performed substantive legal services for the Company in connection with the
Registration Statement, offering of the Shares and litigation matters. Except as
otherwise expressly set forth herein, we have not undertaken any independent
investigation or inquiry to determine the existence or absence of such matters,
actions, proceedings, items, documents or facts and no inference as to our
knowledge thereof should be drawn from our representation of the Company.
This opinion is furnished by us for the sole benefit of the Underwriters,
and no other person or entity shall be entitled to rely on this opinion without
our express prior written consent in each instance, except for Xxxxxxxx &
Xxxxxxxx LLP, as counsel for the Underwriters which may rely on this opinion in
rendering its opinion to the Underwriters. Without our prior written consent,
this opinion may not be quoted in whole or in part or otherwise used or referred
to in connection with any other transactions and may not be furnished to or
filed with any governmental agency or other person or entity.
Sincerely,
XXXXXXXXX XXXXXXXX LLP
ANNEX II(b)
FORM OF OPINION OF MILBANK, TWEED, XXXXXX & XXXXXX LLP
February __, 2004
Xxxxxxx, Sachs & Co.,
Deutsche Bank Securities Inc.,
McDonald Investments Inc., A Keycorp Company,
First Analysis Securities Corporation,
As representatives of the several Underwriters
named in Schedule I thereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
We have acted as special New York counsel to Vita International
Limited ("Vita") in connection with the purchase and sale of 5,382,836 shares of
common stock, par value $0.75 per share ("Shares"), of Spartech Corporation (the
"Company") pursuant to the Underwriting Agreement (the "Underwriting Agreement")
dated January 28, 2004, among you (the "Underwriters"), the Company and Vita.
This opinion letter is being delivered pursuant to Section 7(d) of the
Underwriting Agreement. All capitalized terms used but not defined herein have
the respective meanings given to such terms in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Underwriting Agreement; and
(b) such records of Vita and such other documents as we have deemed
necessary as a basis for the opinions expressed below.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with authentic original documents of all documents submitted to
us as copies. When relevant facts were not independently established, we have
relied upon certificates of appropriate representatives of Vita and/or
representations made in or pursuant to the Underwriting Agreement
In rendering the opinions expressed below, we have assumed, with
respect to all of the documents referred to in this opinion letter, that (except
to the extent set forth in the opinions below):
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and constitute legal, valid, binding and
enforceable obligations of, all of the parties to such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate or other) to
execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
1. The Underwriting Agreement has been duly delivered by Vita.
2. The sale of the Shares to be sold by Vita under, and the compliance by
Vita with all of the provisions of, the Underwriting Agreement and the
consummation by it of the transactions therein contemplated will not conflict
with any laws of the United States or New York that in our experience are
normally applicable to transactions of the type contemplated by the Underwriting
Agreement nor will such action result in any violation of any order, rule or
regulation known to us of any court or United States or New York governmental
agency or body having jurisdiction over Vita or the property of Vita.
3. No consent, approval, authorization or order of any United States or
New York governmental agency or body is required for the consummation by Vita of
the transactions contemplated by the Underwriting Agreement in connection with
the Shares to be sold by Vita hereunder, except for such consents, approvals,
authorizations or orders which have been duly obtained and are in full force and
effect, such as have been obtained under the Act and such as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of such Shares by the Underwriters.
4. Good and valid title to the Shares to be sold by Vita, free and clear
of all liens, encumbrances, equities or claims, has been transferred to each of
the several Underwriters who have purchased such Shares in good faith and
without notice of any such lien, encumbrance, equity or claim or any other
adverse claim within the meaning of the Uniform Commercial Code.
The opinion in paragraph 2 is not given with respect to compliance
with the provisions of Section 8 of the Underwriting Agreement.
The foregoing opinions are limited to matters involving the Federal
laws of the United States of America and the law of the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction.
At the request of our client, this opinion letter is, pursuant to
Section 7(d) of the Underwriting Agreement, provided to you by us in our
capacity as special New York counsel to Vita and may not be relied upon by any
person or for any purpose other than in connection with the transactions
contemplated by the Underwriting Agreement without, in each instance, our prior
written consent.
Very truly yours,
JTO/MLW
ANNEX II(c)
FORM OF OPINION OF ASHURST
x00 (0)00 0000 0000
x00 (0)00 0000 0000
xxxxxxx.xxxx@xxxxxxx.xxx
[Closing Date] 2004
Xxxxxxx, Sachs & Co.,
Deutsche Bank Securities Inc.,
McDonald Investments Inc., A KeyCorp Company,
First Analysis Securities Corporation,
As representatives of the several Underwriters
named in Schedule I thereto (the "UNDERWRITERS"),
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Dear Sirs
1. DESCRIPTION OF TRANSACTION
We have acted as English legal advisers to Vita International Limited (the
"Selling Stockholder") in connection with an underwriting agreement (the
"Underwriting Agreement") dated __ January 2004 and made between Spartech
Corporation (the "Company"), the Selling Stockholder and the Underwriters
relating, inter alia, to the sale by the Selling Stockholder of 5,382,836
shares of Common Stock, par value $0.75 per share, of the Company (the
"Shares").
2. DEFINED TERMS
Terms defined in the Underwriting Agreement have the same meanings when
used in this opinion, unless otherwise defined in this opinion or schedule
1 to this opinion.
3. DOCUMENTS EXAMINED AND SEARCHES CARRIED OUT
3.1 For the purposes of this opinion, we have examined copies of the documents
listed in schedule 1 to this opinion.
3.2 On ______ 2004 we carried out a company search at the Companies Registry,
in respect of the Selling Stockholder which did not reveal any order or
resolution to wind up the Selling Stockholder and no notice of appointment
of a receiver or administrator. However, notice of an order, resolution or
appointment may not have been filed with the Companies Registry
immediately and the search would not in any event reveal the existence of
a winding up petition. We have received the Officer's Certificate,
attached as schedule 2, stating that no winding up resolution has been
passed and that the Selling Stockholder has received no notice of the
appointment of a receiver or administrator or of any winding up petition
being presented. We made telephone inquiry of the High Court in London on
_______ 2004 and we were informed that according to the Court's computer
records no such petition or filing had been presented or order or
appointment made.
3.3 Except as stated above, we have not examined any agreements, deeds,
instruments or other documents entered into by or affecting the Selling
Stockholder or any corporate records of the
Selling Stockholder and we have not made any other enquiries concerning
the Selling Stockholder. We have not investigated whether the Selling
Stockholder is or will be by reason of the transactions and matters
contemplated by the Underwriting Agreement in breach of any of its
obligations under any agreement, document, deed or instrument.
4, OPINION LIMITED TO ENGLISH LAW
4.1 This opinion is given only with respect to English law and is itself
governed by English law.
4.2 We express no opinion as to the laws of any jurisdiction other than the
laws of England and we assume that no foreign law affects any of the
conclusions stated below. We undertake no responsibility to notify any
addressee of this opinion of any change in English law after the date of
this opinion.
5. NO OPINION OF FACT
We express no opinion as to matters of fact.
6. ASSUMPTIONS
In giving this opinion, we have assumed:
6.1 the genuineness of all signatures;
6.2 the authenticity and completeness of all documents submitted to us as
originals;
6.3 the conformity to original documents of all documents submitted to us as
copies or received by facsimile transmission and the authenticity and
completeness of such original documents;
6.4 that the Underwriting Agreement (a) is within the capacity and powers of,
and has been validly authorised, executed and delivered by, all parties
thereto (other than the Selling Stockholder as to matters governed by
English law) and (b) is legally valid and binding and enforceable against
all parties thereto, including the Selling Stockholder, under all relevant
laws (other than the Selling Stockholder as to matters governed by English
law);
6.5 that there have been no amendments to the Memorandum or Articles of
Association of the Selling Stockholder as compared to the form [certified
by ________ as being in force as at _______ 2004] and provided to us in
connection with the giving of this opinion;
6.6 that immediately after the execution of the Underwriting Agreement, the
Selling Stockholder was solvent;
6.7 the accuracy of all representations as to fact made in the Underwriting
Agreement by the Selling Stockholder;
6.8 that the Underwriting Agreement has the same meaning and effect as it
would do if it were governed by English law;
6.9 that each Underwriter has complied with and will comply with all
applicable provisions of the Public Offers of Securities Regulations 1995
and the Financial Services and Markets Xxx 0000 ("FSMA"), and any
applicable secondary legislation made thereunder, with respect to anything
done by it in relation to the Shares in, from or otherwise involving the
United Kingdom;
6.10 that the percentage ratios (as defined in paragraph 10.5 of the Listing
Rules of the Financial Services Authority (the "Listing Rules"))
applicable to the sale by the Selling Stockholder of the Shares are not
25% or more, and have therefore assumed that the sale of the Shares does
not constitute a Class 1 transaction in accordance with paragraph 10.4 of
the Listing Rules; and
6.11 that the certificates and other documents dated on or before the date of
this opinion and on which we have expressed reliance remain accurate and
that no additional matters would have been disclosed by company searches
at the Companies Registry being carried out since the carrying out of the
searches referred to above and that the particulars disclosed by our
company searches are true, complete and up to date.
7. OPINION
Based upon the foregoing and subject to any matters not disclosed to us,
and subject to the qualifications set out below, we are of the opinion
that at the date hereof:
7.1 STATUS
The Selling Stockholder is a limited liability company, duly incorporated
and subsisting under the laws of England and, so far as is discoverable
from public records at the Companies Registry and our telephone search at
the Companies Court, is not in liquidation.
7.2 POWERS AND AUTHORITY
The Selling Stockholder has capacity and all requisite corporate power to
enter into, execute, deliver and perform its obligations under the
Underwriting Agreement, has taken all necessary corporate action to
authorise the entry into, execution, delivery and performance of its
obligations under the Underwriting Agreement and has duly executed the
Underwriting Agreement.
7.3 NON-CONFLICT
The sale of the Shares by the Selling Stockholder pursuant to the
Underwriting Agreement and, subject to the qualifications contained
herein, the compliance by the Selling Stockholder with all of the
provisions of the Underwriting Agreement and the consummation of the
transactions contemplated therein will not conflict with or result in a
breach or violation of any terms or provisions of, or constitute a default
under, any English statute applicable to English companies generally, nor
will such action result in any violation of the provisions of the
Memorandum of Association or Articles of Association of the Selling
Stockholder.
7.4 NO CONSENTS
No consent, approval, authorisation or order of any English court or
governmental agency or body is required for the consummation of the
transactions contemplated by the Underwriting Agreement in connection with
the Shares to be sold by the Selling Stockholder thereunder, except for
such consents, approvals, authorisations or orders that have been duly
obtained and are in full force and effect in connection with the purchase
and distribution of such Shares by the Underwriters.
7.5 CHOICE OF LAW
Subject to paragraph 8.6, the express choice of the laws of the State of
New York as the governing law of the Underwriting Agreement will be
recognised by the English courts as a valid choice.
8. QUALIFICATIONS
This opinion is subject to the following qualifications:
8.1 PENALTIES
We express no opinion as to the validity or binding effect of the
obligations of the Selling Stockholder under any provision of the
Underwriting Agreement providing for the payment by that party of a higher
rate of interest on overdue amounts or any other penalty.
8.2 CONCURRENT OR PRIOR PROCEEDINGS
An English Court may refuse to accept jurisdiction or stay proceedings in
certain circumstances, for example, if related proceedings are being
brought concurrently elsewhere or if another forum is more convenient. If
a judgment has been given in proceedings in another jurisdiction which is
enforceable or capable of recognition in England and Wales, then the party
in whose favour such judgment was given cannot bring proceedings between
the same parties in England and Wales on the same cause of action.
8.3 EXCULPATORY
The effectiveness of terms exculpating a party from a liability or duty
otherwise owed (including liability arising out of the non-payment of
stamp duty) is limited by law and indemnities given by the Selling
Stockholder in respect of stamp duties payable in the United Kingdom may
be void under section 117 of the Stamp Xxx 0000.
8.4 SPECIFIC PROVISIONS
English courts are prepared to render judgments for a monetary amount in
foreign currencies but the judgment may be converted into sterling for
enforcement purposes. Foreign currency amounts claimed in an English
liquidation must be converted into sterling at the rate prevailing at the
commencement of the liquidation.
8.5 ORAL AMENDMENTS
The Underwriting Agreement may be amended orally or by a course of conduct
by the parties thereto notwithstanding provisions therein to the contrary.
8.6 ROME CONVENTION
The Rome Convention (as defined in the Contracts (Applicable Law) Act
1990) has the force of law in the United Kingdom by virtue of such Act.
Article 3.1 of the Rome Convention provides that a contract shall be
governed by the law chosen by the parties. Although the express choice of
the laws of the State of New York as the governing law of the Underwriting
Agreement is a choice of law within the terms of Article 3.1, the Rome
Convention does provide for circumstances where Article 3.1 will not be
applicable or will be overridden. In particular:
(a) Article 3.1 will not apply to questions governed by the law of
companies and other bodies corporate or unincorporate (including
winding up of companies and other bodies corporate or unincorporate)
or to certain obligations arising under negotiable instruments or to
the question whether an agent is able to bind a principal, or an
organ to bind a company or body corporate or unincorporate, to a
third party (Article 1);
(b) if the parties have chosen a foreign law but all other elements
relevant to the situation at the time of choice are connected with
one country only, such choice of law will not prejudice the
application of rules of the law of that country which cannot be
derogated from by contract (Article 3.3);
(c) nothing in Article 3.1 restricts the application of the rules of the
law of the forum in a situation where they are mandatory
irrespective of the law otherwise applicable to the contract
(Article 7.2); and
(d) the application of a rule of the chosen law may be refused if such
application is manifestly incompatible with the public policy of the
forum (Article 16).
8.7 COSTS
An English Court may refuse to give effect to any provision in the
Underwriting Agreement for the payment of, or indemnifying against,
expenses in respect of the costs of enforcement (actual or attempted) or of
unsuccessful litigation brought before an English Court or where the Court
has itself made an order for costs.
8.8 BRETTON XXXXX
If the performance of the payment obligations of the Selling Stockholder
under the Underwriting Agreement is contrary to the exchange control
regulations of the United States of America those obligations may be
unenforceable in England by reason of section 2(b) of Article VIII of the
International Monetary Fund Agreement and the Bretton Xxxxx Agreements
Order in Council 1946.
8.9 POWERS
Whilst we are of the opinion that the Selling Stockholder has the necessary
powers under its Memorandum of Association to enter into the obligations in
the Underwriting Agreement, the directors of the Selling Stockholder must
exercise those powers bona fide in the interests of the Selling
Stockholder. This may involve demonstrating that a sufficient commercial
benefit for the Selling Stockholder arises from the arrangements
contemplated by the Underwriting Agreement, as to which we express no
opinion.
8.10 MEMORANDUM
An English company only has authority to carry on those businesses
specified in the objects clause of its memorandum of association.
8.11 PREPARATION OF UNDERWRITING AGREEMENT
We have not been involved in the drafting, preparation or negotiation of
the Underwriting Agreement and accordingly express no opinion as to the
sufficiency or effectiveness of the Underwriting Agreement to achieve the
purposes contemplated by the parties thereto.
8.12 CERTIFICATES
In giving this opinion we have relied (without further enquiry or
investigation) upon the certificate dated _________ 2004 addressed to us,
and signed by [the secretary/a director] of the Selling Stockholder
attached as schedule 2 to this opinion certifying, inter alia, that the
resolution of the Board of Directors attached to the certificate is true
and correct, that an authorised signatory of the Selling Stockholder has
signed the Underwriting Agreement, that the Selling Stockholder has not
passed a voluntary winding up resolution and that by entering into the
Underwriting Agreement the Selling Stockholder has not conflicted with,
breached or violated the terms of any other agreement or instrument to
which the Selling Stockholder is a party or by which it is bound.
8.13 BENEFIT
This opinion is given for the sole benefit of the persons to whom it is
addressed and is not to be relied upon by or communicated to any other
person or for any other purpose, nor is it to be quoted or made public in
any way without our prior written consent.
Yours faithfully
SCHEDULE 1
LIST OF DOCUMENTS EXAMINED
1. The Underwriting Agreement.
2. Certified copy resolutions of the board of directors [and/or a duly
constituted and authorised committee thereof] of the Selling Stockholder
relating, inter alia, to the Underwriting Agreement.
3. A copy of the Memorandum and Articles of Association of the Selling
Stockholder [certified by ______ as being in force on ________].
4. Officer's Certificate of the Selling Stockholder dated the date of this
Opinion.
SCHEDULE 2
LETTERHEAD OF VITA INTERNATIONAL LIMITED
OFFICER'S CERTIFICATE
Ashurst
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
__________ 2004
Dear Sirs
RE: UNDERWRITING AGREEMENT BETWEEN SPARTECH CORPORATION, VITA INTERNATIONAL
LIMITED, XXXXXXX, SACHS & CO., DEUTSCHE BANK SECURITIES INC., MCDONALD
INVESTMENTS INC., A KEYCORP COMPANY, AND FIRST ANALYSIS SECURITIES
CORPORATION, AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS NAMED IN SCHEDULE
I THERETO (THE "UNDERWRITING AGREEMENT")
I refer to the opinion your firm is about to render concerning, inter alia, the
powers of Vita International Limited (the "SELLING STOCKHOLDER") to enter into
the Underwriting Agreement and due authorisation thereof. Expressions defined in
the opinion have the same meanings where used in this Officer's Certificate,
save as otherwise specified. For the purpose of that opinion I hereby certify
that:
(a) an authorised signatory of the Selling Stockholder has executed
the Underwriting Agreement;
(b) no winding-up resolution has been passed by the Selling Stockholder
and the Selling Stockholder has received no notice of the
appointment of a liquidator, receiver, administrative receiver or
administrator in relation to the Selling Stockholder or of any
petition being presented in relation to any of the foregoing;
(c) the resolutions of the committee of the board of directors of the
Selling Stockholder dated ________ 2004 attached hereto are true and
correct and were duly passed at a properly convened meeting of duly
appointed directors comprising that committee and that a duly
qualified quorum of such committee was present throughout the
meeting and voted in favour of approving the resolutions, that any
provisions contained in the Companies Xxx 0000 or the Selling
Stockholder's articles of association relating to the declaration of
directors' interests or the power of the interested directors to
vote were observed and that such resolutions have not been amended
or rescinded and are in full force and effect;
(d) the resolutions of the board of directors of the Selling Stockholder
dated _______ pursuant to which the committee referred to in (c)
above was appointed and
which are attached hereto are true and correct and were duly passed
at a properly convened meeting of duly appointed directors of the
Selling Stockholder and that a duly qualified quorum of such
directors was present throughout the meeting and voted in favour of
approving the resolutions, that any provisions contained in the
Companies Xxx 0000 or the Selling Stockholder's articles of
association relating to the declaration of directors' interests or
the power of the interested directors to vote were observed and that
such resolutions have not been amended or rescinded and are in full
force and effect;
(e) by entering into the Underwriting Agreement the Selling Stockholder
has not conflicted with, breached or violated the terms of any other
agreement or instrument to which the Selling Stockholder is a party
or by which it is bound.
Yours faithfully
[Director/Secretary]
Vita International Limited
FORM OF OPINION OF IN-HOUSE COUNSEL OF SELLING STOCKHOLDER
_______ 2004
To: Xxxxxxx, Xxxxx & Co.,
Deutsche Bank Securities Inc.,
McDonald Investments Inc., A KeyCorp Company,
First Analysis Securities Corporation,
As representatives of the several Underwriters
named in Schedule I thereto (the "UNDERWRITERS"),
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Dear Sirs,
1. DESCRIPTION OF TRANSACTION
I am company secretary and in-house solicitor of Vita International
Limited (the "SELLING STOCKHOLDER") and I have acted in this capacity in
connection with an underwriting agreement (the "UNDERWRITING AGREEMENT")
dated __ January 2004 and made between Spartech Corporation (the
"COMPANY"), the Selling Stockholder and Xxxxxxx, Sachs & Co., Deutsche
Bank Securities Inc., McDonald Investments Inc., A KeyCorp Company, and
First Analysis Securities Corporation, as representatives of the several
Underwriters named in Schedule I thereto (together the "UNDERWRITERS")
relating to the sale by the Selling Stockholder of 5,382,836 shares of
Common Stock, par value $.75 per share, of the Company (the "SHARES").
2. DEFINED TERMS
Terms defined in the Underwriting Agreement have the same meanings when
used in this opinion, unless otherwise defined in this opinion or the
schedule to this opinion.
3. OPINION
Based upon the foregoing and subject to any matters not disclosed to me,
and subject to the qualifications set out below, I am of the opinion
that at the date hereof:
3.1. NON-CONFLICT
The sale of the Shares to be sold by the Selling Stockholder pursuant to
the Underwriting Agreement and, subject to the qualifications contained
herein, the compliance by the Selling Stockholder with all of the
provisions of the Underwriting Agreement and the consummation of the
transactions contemplated therein will not conflict with or result in a
breach or violation of or constitute a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Selling Stockholder is a party or by which the Selling
Stockholder is bound or
to which any property or assets of the Selling Stockholder is subject.
4. BENEFIT
This opinion is given for the sole benefit of the person(s) to whom it
is addressed and is not to be relied upon by or communicated to any
other person or for any other purpose, nor is it to be quoted or made
public in any way without my prior written consent.
Yours faithfully,
For and on behalf of
Vita International Limited
ANNEX II(d)
FORM OF CHIEF FINANCIAL OFFICER'S CERTIFICATE
Pursuant to Section 7(f) of the Underwriting Agreement, the Chief
Financial Officer of the Company shall furnish certificate(s) to the
Underwriters to the effect that:
Based upon his examination of the Company's financial records and
schedules undertaken by himself or members of his staff who report to him and
are responsible for the Company's financial and accounting matters, he hereby
certifies that:
1. Nothing has come to his attention that would lead him to believe
that:
(i) the consolidated statement of operations, the consolidated
statement of shareholders' equity and the consolidated statement of
cash flows of the Company and its subsidiaries for the fiscal year
ended November 3, 2001 included in the Prospectus, do not present
fairly the results of operations and the cash flows of the Company
and its subsidiaries for the fiscal year ended November 3, 2001 in
conformity with generally accepted accounting principles; and
(ii) the consolidated balance sheet data of the Company as of
October 30, 1999, October 28, 2000 and November 3, 2001 and the
consolidated income statement data for each of the fiscal years
ended October 30, 1999, October 28, 2000 and November 3, 2001
included in the Prospectus do not present fairly the financial
position of the Company and its subsidiaries as of October 30, 1999,
October 28, 2000 and November 3, 2001, and the results of their
operations for each of the fiscal years ended October 30, 1999,
October 28, 2000 and November 3, 2001 in conformity with generally
accepted accounting principles.
2. He has read the items marked on the attached copies of certain pages
of the Prospectus (including documents incorporated by reference
therein) and has compared such amounts with, or recomputed such
amounts from, amounts or percentages included on a schedule or
report for the applicable periods prepared by the Company, and noted
agreement.
ANNEX III
SPARTECH CORPORATION
LOCK-UP AGREEMENT
January __, 2004
Xxxxxxx, Sachs & Co.,
Deutsche Bank Securities Inc.,
McDonald Investments Inc., A KeyCorp Company,
First Analysis Securities Corporation,
As representatives of the several Underwriters,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Re: Spartech Corporation - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representatives (the
"Representatives"), propose to enter into an Underwriting Agreement on behalf of
the several Underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with Spartech Corporation, a Delaware corporation (the
"Company"), providing for a public offering of the Common Stock, par value $.75
per share, of the Company (the "Shares") pursuant to a Registration Statement on
Form S-3 (File No. 333-109682) filed with the Securities and Exchange Commission
(the "SEC").
In consideration of the agreement by the Underwriters to offer and sell
the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that, during
the period beginning from the date of the Underwriting Agreement and continuing
to and including the date 90 days after the date of the Underwriting Agreement,
the undersigned will not offer, sell, contract to sell, pledge, grant any option
to purchase, make any short sale or otherwise dispose of any shares of Common
Stock, par value $.75 per share ("Common Stock"), of the Company, or any options
or warrants to purchase any shares of Common Stock of the Company, or any
securities convertible into, exchangeable for or that represent the right to
receive shares of Common Stock of the Company, whether now owned or hereinafter
acquired, owned directly by the undersigned (including holding as a custodian)
or with respect to which the undersigned has beneficial ownership within the
rules and regulations of the SEC (collectively, the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the undersigned
from engaging in any hedging or other transaction which is designed to or which
reasonably could be expected to lead to or result in a sale or disposition of
the Undersigned's Shares even if such Shares would be disposed of by someone
other than the undersigned. Such prohibited hedging or other transactions would
include without limitation any short sale or any purchase, sale or grant of any
right (including without limitation any put or call option) with respect to any
of the Undersigned's Shares or with respect to any security that includes,
relates to, or derives any significant part of its value from such Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee
or donees thereof agree to be bound in
writing by the restrictions set forth herein, (ii) to any trust for the direct
or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein, and provided further that any such
transfer shall not involve a disposition for value, or (iii) with the prior
written consent of Xxxxxxx, Xxxxx & Co. on behalf of the Underwriters. For
purposes of this Lock-Up Agreement, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
In addition, notwithstanding the foregoing, if the undersigned is a corporation,
the corporation may transfer the capital stock of the Company to any
wholly-owned subsidiary of such corporation; provided, however, that in any such
case, it shall be a condition to the transfer that the transferee execute an
agreement stating that the transferee is receiving and holding such capital
stock subject to the provisions of this Agreement and there shall be no further
transfer of such capital stock except in accordance with this Agreement, and
provided further that any such transfer shall not involve a disposition for
value. The undersigned now has, and, except as contemplated by clause (i), (ii),
or (iii) above, for the duration of this Lock-Up Agreement will have, good and
marketable title to the Undersigned's Shares, free and clear of all liens,
encumbrances, and claims whatsoever. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the Undersigned's Shares except in compliance
with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors, and assigns.
Very truly yours,
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Name
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Authorized Signature
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Title
