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EXHIBIT 1.1
2,328,968 Shares
SPARTECH CORPORATION
Common Stock
UNDERWRITING AGREEMENT
______________, 1999
FIRST ANALYSIS SECURITIES CORPORATION
EVEREN SECURITIES, INC.
XXXXXX XXXXXXXXXX XXXXX INC.
As Representatives of the Several Underwriters,
c/o First Analysis Securities Corporation,
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000
Dear Sirs:
1. Introductory. The stockholders listed in Schedule A hereto ("Selling
Stockholders") of Spartech Corporation, a Delaware corporation ("Company")
propose severally to sell 2,328,968 shares of outstanding Common Stock of the
Company ("Securities") (such 2,328,968 shares of Securities being hereinafter
referred to as the "Firm Securities"). The Company also proposes to issue and
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 345,000 additional shares of the Company's Securities (such 345,000
additional shares being hereinafter referred to as the "Optional Securities").
The Firm Securities and the Optional Securities are herein collectively called
the "Offered Securities." TCW Special Placements Fund I, TCW Special Placements
Fund II and TCW Capital, as investment manager pursuant to an Investment
Management agreement dated as of June 30, 1987 are collectively called "The TCW
Group." The Company and the Selling Stockholders hereby agree with the several
Underwriters named in Schedule B hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company represents and warrants to, and agrees with,
the several Underwriters and the Selling Stockholders that:
(i) A registration statement (No. 333-74789) relating to
the Offered Securities, including a form of prospectus, has been
filed with the Securities and Exchange Commission ("Commission")
and either (A) has been declared effective under the Securities
Act of 1933 ("Act") and is not proposed to be amended or (B) is
proposed to be amended by amendment or post-effective amendment.
If such
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registration statement (the "initial registration statement") has
been declared effective, either (A) an additional registration
statement (the "additional registration statement" relating to the
Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so
filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable,
the additional registration statement or (B) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered Securities
will all have been duly registered under the Act pursuant to the
initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and
if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent
amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act or,
in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, "Effective Time" with respect to
the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional
registration statement means (A) if the Company has advised the
Representatives that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c), or (B) if the Company has advised the Representatives that
it proposes to file an amendment or post-effective amendment to
such registration statement, the date and time as of which such
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration
statement has not been filed prior to the execution and delivery
of this Agreement but the Company has advised the Representatives
that it proposes to file one, "Effective Time" with respect to
such additional registration statement means the date and time as
of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "Effective Date" with respect
to the initial registration statement or the additional
registration statement (if any) means the date of the Effective
Time thereof. The initial registration statement, as amended at
its Effective Time, including all material incorporated by
reference therein, including all information contained in the
additional registration statement (if any) and deemed to be a part
of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule
430A(b) ("Rule 430A(b)")
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under the Act, is hereinafter referred to as the "Initial
Registration Statement." The additional registration statement, as
amended at its Effective Time, including the contents of the
initial registration statement incorporated by reference therein
and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the
"Additional Registration Statement." The Initial Registration
Statement and the Additional Registration are hereinafter referred
to collectively as the "Registration Statements" and individually
as a "Registration Statement," The form of prospectus relating to
the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act or (if no such filing is required) as included in a
Registration Statement, including all material incorporated by
reference in such prospectus, is hereinafter referred to as the
"Prospectus." No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all
respects to the requirements of the Act and the rules and
regulations of the Commission ("Rules and Regulations") and did
not include 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, (B) on the
Effective Date of the Additional Registration Statement (if any),
each Registration Statement conformed or will conform, in all
respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit,
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C)
on the date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms,
and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of
the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and
the Rules and Regulations, neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional
Registration Statement has
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been or will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company
by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such
information is that described as such in Section 7(c).
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification except where the failure to
qualify would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(iv) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and each subsidiary
of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification except where the failure to qualify
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable;
and the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(v) The Offered Securities and all other outstanding
shares of capital stock of the Company have been duly authorized
and validly issued, fully paid and nonassessable and conform to
the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect
to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's
fee or other like payment in connection with the Offered
Securities.
(vii) Except for (A) the Registration Rights Agreement dated
as of March 1, 1999 between the Company and the holders of the
6.50% Convertible Preferred Securities of Spartech Capital Trust,
and (B) the Registration Agreement dated as of March 31, 1998
between the Company and RBA Partners,
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L.P., Banbury Associates, L.P. and Huntsman Compounding Company,
LC, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(viii) The Common Stock of the Company is listed and the
Optional Securities have been approved for listing subject to
notice of issuance on the New York Stock Exchange.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Company for the
consummation of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities, except such as
have been obtained and made under the Act and such as may be
required under state securities laws.
(x) The execution, delivery and performance of this
Agreement, and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of
the terms provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction
over the Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary except where such
breach or violation would not have a material adverse effect on
the Company or any of its subsidiaries.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would
have a material adverse effect on the Company or any of its
subsidiaries; and except as disclosed in the Prospectus, the
Company and its subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions
that would have a material adverse effect on the Company or any of
its subsidiaries.
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(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(xiv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is
imminent that might have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to
conduct the business now operated by them, or presently employed
by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of 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, which violation,
contamination, liability or claim would individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
pending investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
material adverse effect on the financial condition, business,
properties or results of operations of the Company and its
subsidiaries taken as a whole, or would materially and adversely
affect the ability of the Company to perform its obligations under
this Agreement, or which are otherwise material in the context
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of the sale of the Offered Securities; and no such actions, suits
or proceedings are threatened or, to the Company's knowledge,
contemplated.
(xviii) The financial statements of the Company included in
each Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a
consistent basis; and the assumptions used in preparing the pro
forma financial information included in each Registration
Statement and the Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(xix) The financial statements of Polycom Huntsman, Inc.
("Polycom"), included in each Registration Statement and the
Prospectus present fairly the financial position of Polycom and
its consolidated subsidiary as of the dates shown and their
results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis.
(xx) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the
Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the financial condition, business, properties or
results of operations of the Company and its subsidiaries taken as
a whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company Act
of 1940.
(b) Each Selling Stockholder severally represents and warrants
to, and agrees with, the several Underwriters that such Selling Stockholder has
and on each Closing Date hereinafter mentioned will have valid and unencumbered
title to the Offered Securities to be delivered by such Selling Stockholder on
such Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date hereunder; and upon
the delivery of and payment for the Offered Securities on each Closing Date
hereunder assuming the
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Underwriters are purchasing such Offered Securities in good faith and without
notice of any adverse claim, the several Underwriters will acquire valid and
unencumbered title to the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a purchase price of $__________ per share, that number of Firm Securities
(rounded up or down, as determined by First Analysis Securities Corporation
("First Analysis") in its discretion, in order to avoid fractions) obtained by
multiplying the number of Firm Securities set forth opposite the name of such
Selling Stockholder in Schedule A hereto by a fraction the numerator of which is
the number of Firm Securities set forth opposite the name of such Underwriter in
Schedule B hereto and the denominator of which is the total number of Firm
Securities.
The Selling Stockholders will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters against payment of the
purchase price by official bank check or checks in Federal Reserve (same day)
funds or wire transfer to a bank acceptable to First Analysis drawn to the order
of TCW Special Placements Fund I in the case of 1,591,461 shares of Firm
Securities, to TCW Special Placements Fund II in the case of 408,221 shares of
Firm Securities, to TCW Capital, as investment manager pursuant to an Investment
Management Agreement dated as of June 30, 1987, in the case of 12,329 shares of
Firm Securities and to Huntsman International Corporation in the case of 316,957
shares of Firm Securities, at the office of ______________________________, at
9:00 A.M., New York time, on___________ __, 1999, or at such other time not
later than seven full business days thereafter as First Analysis and the Selling
Stockholders determine, such time being herein referred to as the "First Closing
Date." The certificates for the Firm Securities so to be delivered will be in
definitive form, in such denominations registered in such names as First
Analysis requests and will be made available for checking and packaging at the
office of The Depository Trust Company at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from First Analysis given to the
Company not more than once, and not more than 30 days subsequent to the date of
the Prospectus, the Underwriters may purchase all or less than all of the
Optional Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees to issue and sell to the Underwriters the number
of Optional Securities specified in such notice, and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by First Analysis to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. No Optional Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent
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not previously exercised, may be surrendered and terminated at any time upon
notice by First Analysis to the Company.
The time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by First
Analysis but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will
issue and deliver the Optional Securities being purchased on The Optional
Closing Date to the Representatives for the accounts of the several Underwriters
against payment of the purchase price therefor by certified or official bank
check or checks in Federal Reserve (same day) funds or wire transfer to a bank
acceptable to First Analysis drawn to the order of the Company. The certificates
for the Optional Securities being purchased on each Optional Closing Date will
be in definitive form, in such denominations and registered in such names as
First Analysis requests upon reasonable notice prior to such Optional Closing
Date and will be made available for checking and packaging at the office of The
Depository Trust Company at a reasonable time in advance of such Optional
Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders.
The Company agrees with the several Underwriters and the Selling Stockholders
that:
(a) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Company will file
the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by First Analysis,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the second
business day following the execution and delivery of this Agreement or (B) the
fifteenth business day after the Effective Date of the Initial Registration
Statement. The Company will advise First Analysis promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on or prior
to the time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented to by
First Analysis.
(b) The Company will advise First Analysis and the Selling
Stockholders promptly of any proposal to amend or supplement the initial or any
additional registration statement as filed or the related prospectus or Initial
Registration Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without First
Analysis' consent; and the Company will also advise First
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Analysis promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this Agreement)
and of any amendment or supplementation of a Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its best efforts
to prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs 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 to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company will promptly notify First Analysis of such event and
will promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither First Analysis' consent to,
nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial Registration Statement (or, if
later, the Effective Date of the Additional Registration Statement) which will
satisfy the provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(e) The Company will furnish to the Representatives and the
Selling Stockholders copies of each Registration Statement (three and two of
which will be signed and will include all exhibits), each related preliminary
prospectus, and, so long as a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as First Analysis and the Selling
Stockholders request. The Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the later of the execution
and delivery of this Agreement or the Effective Time of the Initial Registration
Statement. All other such documents shall be so furnished as soon as available.
The Company and the Selling Stockholders will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as First Analysis
designates and will continue such qualifications in effect so long as required
for the distribution.
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(g) During the period of 5 years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy
of its annual report to stockholders for such year; and the Company will furnish
to the Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934 or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as First Analysis may
reasonably request.
(h) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to, any
additional shares of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities, or publicly
disclose the intention to make any such offer, sale, pledge, disposal or filing,
without the prior written consent of First Analysis, except (i) grants of
employee stock options pursuant to the terms of a plan in effect on the date
hereof, (ii) issuances of Securities pursuant to the exercise of such options or
the exercise of any other stock options of the Company outstanding on the date
hereof or issuances of Securities upon the conversion by the holders thereof in
accordance with their terms of the 6.50% Convertible Subordinated Debentures of
the Company and the 6.50% Convertible Preferred Securities of Spartech Capital
Trust outstanding on the date hereof.
(i) Prior to the first Closing Date, the Company will furnish to
the Representatives "lock-up" letters, in a form satisfactory to the
Representatives, signed by the officers and directors of the Company and by Vita
International Limited in which each agrees, for a period of 90 days after the
date of the initial public offering of the Offered Securities, not to offer,
sell, contract to sell, pledge or otherwise dispose of (other than pursuant to a
bona fide gift or the surrender or sale of sufficient shares of Securities of
the Company to pay the exercise price and/or taxes due upon the exercise of
stock options of the Company), directly or indirectly, any additional shares of
the Securities of the Company or securities convertible into or exchangeable or
exercisable for any shares of Securities, or publicly disclose the intention to
make any such offer, sale, pledge or disposal, without the prior written consent
of First Analysis.
The Company agrees with the several Underwriters that the Company will
pay all expenses incident to the performance of the obligations of the Company
and each Selling Stockholder, under this Agreement, and will reimburse the
Underwriters (if and to the extent incurred by them) for any filing fees and
other expenses (including fees and disbursements of counsel) incurred by them in
connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions as First Analysis designates and the printing of memoranda
relating thereto for the filing fee of the National Association of Securities
Dealers, Inc. relating to the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers of the
Offered Securities, for any transfer taxes on the sale by the Selling
Stockholders of the Offered Securities to the Underwriters and for expenses
incurred in distributing preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) to the Underwriters.
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Each Selling Stockholder agrees to deliver to First Analysis, on or
prior to the First Closing Date a properly completed and executed United States
Treasury Department Form W-9 or Form 8709 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
[Each Selling Stockholder agrees, for a period of 90 days after the
date of the initial public offering of the Offered Securities, not to offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any additional shares of the Securities of the Company or securities convertible
into or exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or disposal, without
the prior written consent of First Analysis.]
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such Effective Time), of Xxxxxx Xxxxxxxx LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements of the
Company examined by them and included or incorporated by reference
in the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on the
unaudited financial statements of the Company included in the
Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who responsibility for financial and accounting matters
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and other specified procedures, nothing came to their attention
that caused them to believe that:
(A) the unaudited financial statements of the Company
included in the Registration Statements do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to
such unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet
of the Company read by such accountants, or at a subsequent
specified date not more than five days prior to the date of
this Agreement, there was any change in the capital stock or
any increase in short-term indebtedness or long-term debt of
the Company and its consolidated subsidiaries or, at the date
of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net
current assets or net assets, as compared with amounts on the
latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the
latest income statement of the Company included in the
Prospectus to the closing date of the latest available income
statement read by such accountants there were any decreases,
as compared with the corresponding period of the previous
year and with the period of corresponding length ended the
date of the latest income statement included in the
Prospectus, in consolidated net sales or net operating income
in the total or per share amounts of consolidated net income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
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For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and delivery of
this Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "Registration Statements" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "Prospectus" shall mean the prospectus included in the Registration
Statements. All financial statements included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such Effective Time), of Ernst & Young LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating in their opinion the
financial information statements of Polycom examined by them and included or
incorporated by reference in the Registration Statements comply as to form in
all material respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and delivery of
this Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "Registration Statements" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "Prospectus" shall mean the prospectus included in the Registration
Statements. All financial statements included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(c) If the Effective Time of the Initial Registration Statement
is not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been consented to by First
Analysis. If the Effective Time of the Additional Registration Statement (if
any) is not prior to the execution and delivery of this Agreement, such
Effective Time have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have
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occurred at such later date as shall have been consented to by First Analysis.
If the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
any Selling Stockholder, the Company or the Representatives, shall be
contemplated by the Commission.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the financial condition, business, properties
or results of operations of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, materially impairs the investment quality of the Offered
Securities; (ii) any downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market;
(iv) any banking moratorium declared by U.S. Federal or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxxxx Xxxxxxxx, LLP counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to
qualify would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(ii) The Offered Securities delivered on such Closing Date
and all other outstanding shares of the Common Stock of the
Company have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description thereof
contained in the Prospectus; and, to the knowledge of such
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counsel, the stockholders of the Company have no preemptive rights
with respect to the Securities;
(iii) Except for the agreements described in Section
2(a)(vii), there are no contracts, agreements or understandings
known to such counsel between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Company or any Selling
Stockholder for the consummation of the transactions contemplated
by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the
Act and such as may be required under state securities laws;
(v) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein or
therein contemplated will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under,
any order known to such counsel, any statute, any rule, regulation
or any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or
any of their properties, or any agreement or instrument identified
in writing by the Company to such counsel as a material contract
or instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or
any such subsidiary;
(vi) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed
and became effective under the Act as of the date and time (if
determinable) specified in such opinion, the Prospectus either was
filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified therein or
was included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and, to
the best of the knowledge of such counsel, no stop order
suspending the effectiveness of a Registration Statement or any
part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the Act,
and each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective
or issue dates, complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations; such
counsel have no reason to believe
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that any part of a Registration Statement or any amendment
thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading; or that the
Prospectus or any amendment or supplement thereto, as of its issue
date or as of such Closing Date, contained any untrue statement of
a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the
descriptions in the Registration Statements and Prospectus of
statutes, legal and governmental proceedings and contracts and
other documents are accurate and fairly present the information
required to be shown; and such counsel do not know of any legal or
governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not described
as required or of any contracts or documents of a character
required to be described in a Registration Statement or the
Prospectus or to be filed as exhibits to a Registration Statement
which are not described and filed as required; it being understood
that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration
Statements or the Prospectus; and
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of O'Melveny & Xxxxx LLP, counsel for The TCW Group, to the
effect that:
(i) Each Selling Stockholder who is a member of The TCW
Group (a "TCW Selling Stockholder") has the power under the
California Uniform Partnership Act or California Revised Limited
Partnership Act, as applicable, and its partnership agreement to
sell, assign, transfer and deliver the Offered Securities
delivered by such Selling Stockholder on such Closing Date
hereunder; and the several Underwriters, assuming they have
acquired the Offered Securities delivered by such Selling
Stockholder on such Closing Date in good faith and without any
actual notice of adverse claims, own the Offered Securities
purchased by them from the TCW Selling Stockholders on such
Closing Date hereunder free of any adverse claims;
(ii) No consent, approval, permit or order of any
California or federal governmental agency or body or any court
that such counsel has, in the exercise of customary professional
diligence, recognized as applicable to a Selling Stockholder or to
transactions of the type contemplated by this Agreement, is
required to be obtained by any TCW Selling Stockholder for the
consummation of the sale of the Offered Securities sold by such
Selling Stockholder, except such as have been obtained and made
under the Act and such as may be required under any state
securities or Blue Sky Laws, or for clearance of the offering with
the NASD;
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(iii) The execution and delivery of this Agreement and
performance of this Agreement and the consummation of the
transactions herein contemplated, on or prior to the date of this
opinion, in connection with the sale of the Offered securities
sold by the TCW Selling Stockholders, do not violate any
California or federal statute or regulation that such counsel has,
in the exercise of customary professional diligence, recognized as
applicable to a Selling Stockholder or to transactions of the type
contemplated by this Agreement, or the partnership agreement of
such TCW Selling Stockholder, or violate, breach or result in a
default under any agreement or instrument known to such counsel to
which any TCW Selling Stockholder is a party or by which any TCW
Selling Stockholder is bound; and
(iv) The execution and delivery of this Agreement and the
sale, assignment, transfer and delivery by each TCW Selling
Stockholder of the Offered Securities sold by such Selling
Stockholder have been duly authorized by all necessary action
under the California Uniform Partnership Act or California Revised
Limited Partnership Act, as applicable, and the partnership
agreement on the part of such Selling Stockholder and this
Agreement has been duly executed and delivered by each TCW Selling
Stockholder.
Such counsel shall express no opinion under Paragraph 6(f)(iii) with respect to
federal or state securities laws, antitrust laws or with respect to the
indemnification or contribution provisions of this Agreement, except as
expressly stated therein.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of Parr, Waddoups, Xxxxx, Xxx & Xxxxxxxx to the effect that:
(i) Huntsman International Corporation, a Utah corporation
("Huntsman") has the corporate power to sell, assign, transfer and
deliver the Offered Securities delivered by it as a Selling
Stockholder on such Closing Date hereunder; and the several
Underwriters, assuming they have acquired the Offering Securities
delivered by Huntsman on such Closing Date in good faith and
without any actual notice of adverse claims, own the Offered
Securities purchased by them from Huntsman on such Closing Date
hereunder free of any adverse claims;
(ii) No consent, approval, permit or order of any Utah or
federal governmental agency or body or any court that such counsel
has, in the exercise of customary professional diligence,
recognized as applicable to Huntsman as a Selling Stockholder or
to transactions of the type contemplated by this Agreement, is
required to be obtained by Huntsman for the consummation of the
sale of the Offered Securities sold by it, except such as have
been obtained and made under the Act and such as may be required
under any state securities or Blue Sky Laws, or for clearance of
the offering with the NASD;
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(iii) The execution and delivery of this Agreement and
performance of this Agreement and the consummation of the
transactions herein contemplated, on or prior to the date of this
opinion, in connection with the sale of the Offered Securities
sold by Huntsman, do not violate any Utah or federal statute or
regulation that such counsel has, in the exercise of customary
professional diligence, recognized as applicable to Huntsman as a
Selling Stockholder or to transactions of the type contemplated by
this Agreement, or the Articles of Incorporation of Huntsman, or
violate, breach or result in a default under any agreement or
instrument known to such counsel to which Huntsman is a party or
by which Huntsman is bound; and
(iv) The execution and delivery of this Agreement and the
sale, assignment, transfer and delivery by Huntsman of the Offered
Securities sold by Huntsman have been duly authorized by all
necessary corporate action on the part of Huntsman and this
Agreement has been duly executed and delivered by Huntsman.
Such counsel shall express no opinion under Paragraph 6(g)(iii)
with respect to federal or state securities laws, antitrust laws
or with respect to the indemnification or contribution provisions
of this Agreement, except as expressly stated therein.
(h) The Representatives shall have received from XxXxxxxxx, Will
& Xxxxx, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, validity of the
Offered Securities delivered on such Closing Date, Registration Statements, the
Prospectus and other related matters as the Representatives may require, and the
Selling Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(i) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice-President and a principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the dates of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the financial
condition, business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
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(j) The Representatives shall have received a letter, dated such
Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than five days prior to such Closing Date for
the purposes of this subsection.
(k) The Representatives shall have received a letter, dated such
Closing Date, of Coopers & Xxxxxxx which meets the requirements of subsection
(b) of this Section, except that the specified date referred to in such
subsection will be a date not more than five days prior to such Closing Date for
the purposes of this subsection.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. First Analysis may in its sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution.
(a) The Company 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 any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, 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 loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will 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 in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below.
(b)
(i) The TCW Selling Stockholders, severally and not
jointly, will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, 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 any untrue
statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary
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prospectus, 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 reliance upon and in conformity
with written information provided to the Company by such TCW
Selling Stockholder specifically for use therein and will
reimburse each Underwriter for any legal or other expenses
reasonably incurred, it being understood and agreed that the only
such information furnished by any such TCW Selling Stockholder
consists of the information in the Prospectus relating to such TCW
Selling Stockholder appearing under the caption "Principal and
Selling Stockholders"; provided, however, that any such TCW
Selling Stockholder will 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 in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
subsection (c) below; and provided further, however, that such
indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased
Securities which are the subject thereof to the extent that any
such loss, claim, damage or liability arises out of or is based
upon an untrue statement or omission to state a material fact in
such preliminary prospectus which was corrected in the Prospectus
as amended or supplemented; and provided further, however, that
the obligation and liability of any TCW Selling Stockholder to
provide such indemnity shall be limited to and shall not exceed
the total net proceeds from the Offered Securities received by
such TCW Selling Stockholder.
(ii) Huntsman will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, 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 any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary
prospectus, 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 reliance upon and in conformity
with written information provided to the Company by Huntsman
specifically for use therein and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such
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information furnished by Huntsman consists of the information in
the Prospectus relating to Huntsman appearing under the caption
"Principal and Selling Stockholders"; provided, however, that
Huntsman will 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 in or
omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished
to the Company by an Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of
the information described as such in subsection (c) below; and
provided further, however, that such indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased Securities which are the subject
thereof to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
omission to state a material fact in such preliminary prospectus
which was corrected in the Prospectus as amended or supplemented;
and provided further, however, that Huntsman's obligation and
liability to provide such indemnity shall be limited to and shall
not exceed the total net proceeds from the Offered Securities
received by Huntsman.
(c) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company and each Selling Stockholder against any losses,
claims, damages or liabilities to which the Company or such 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 any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the 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 reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fifth paragraph under the caption
"Underwriting."
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any
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indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel 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 will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholders 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 as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders 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 Stockholders 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, the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
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
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contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders
under this Section shall be in addition to any liability which the Company and
the Selling Stockholders 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 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 director of the Company, to each officer of the Company who
has signed a Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act, to each partner of a Selling Stockholder,
and to each person, if any, who controls a Selling Stockholder within the
meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or the Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
First Analysis may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to First Analysis, the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders, except as provided in Section 9 (provided that if such
default occurs with respect to Optional Securities after the First Closing Date,
this Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is
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terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company and the
Selling Stockholders shall remain responsible for the expenses to be paid or
reimbursed by them pursuant to Section 5 and the respective obligations of the
Company, the Selling Stockholders, and the Underwriters pursuant to Section 7
shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(e),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o First Analysis Securities Corporation, 000 Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 000 Xxxxx Xxxxxxx, Xxxxx
0000, Xx. Xxxxx, XX 00000, Attention: Xxxxx X. Xxxxxx, or if sent to The TCW
Group, will be mailed, delivered or telegraphed and confirmed to The TCW Group,
c/o Trust Company of the West, Representative Office, 000 Xxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, Xxx Xxxx 00000, or, if sent to Huntsman, will be mailed,
delivered or telegraphed and confirmed to Huntsman International Corporation,
000 Xxxxxxxx Xxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Xxxx Xxxxxxx; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
First Analysis will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed 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 Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
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The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the City of Chicago, Illinois in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
SPARTECH CORPORATION
By:
----------------------------------
Title:
-------------------------------
TCW SPECIAL PLACEMENTS FUND I
By: TCW Capital, as General Partner
By: TCW Asset Management Company,
its Managing General Partner
By:
----------------------------------
By:
----------------------------------
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TCW SPECIAL PLACEMENTS FUND II
By: TCW Capital, as General Partner
By: TCW Asset Management Company,
its Managing General Partner
By:
----------------------------------
By:
----------------------------------
TCW CAPITAL, ACTING SOLELY IN ITS
CAPACITY AS AN INVESTMENT MANAGER
PURSUANT TO AN INVESTMENT MANAGEMENT
AGREEMENT DATED AS OF JUNE 30, 1987
By: TCW Asset Management Company,
its Managing General Partner
By:
----------------------------------
By:
----------------------------------
HUNSTMAN INTERNATIONAL CORPORATION
By:
----------------------------------
Title:
-------------------------------
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The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
FIRST ANALYSIS SECURITIES CORPORATION
EVEREN SECURITIES, INC.
XXXXXX XXXXXXXXXX XXXXX INC.
Acting on behalf of themselves and as the Representatives of the several
Underwriters.
By: FIRST ANALYSIS SECURITIES CORPORATION
By:
--------------------------------
Title:
-----------------------------
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SCHEDULE A
NUMBER OF FIRM
SECURITIES TO BE SOLD
Selling Stockholder
TCW Special Placements Fund I 1,591,461
TCW Special Placements Fund II 408,221
TCW Capital, as investment manager 12,329
pursuant to an Investment Management
Agreement dated as of June 30, 1987
Huntsman International Corporation 316,957
---------
Total 2,328,968
=========
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SCHEDULE B
Number of
Firm Securities
Underwriter to be Purchased
----------- ---------------
First Analysis Securities Corporation.........................
EVEREN Securities, Inc........................................
Xxxxxx Xxxxxxxxxx Xxxxx Inc...................................
Total...............................................2,328,968
=========
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