Exhibit 1.2
Execution Copy
Constar International Inc.
$175,000,000
11% Senior Subordinated
Notes due 0000
Xxxxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx
November 15, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of the
several Underwriters
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Constar International Inc, a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, $175,000,000 principal amount of its 11% Senior
Subordinated Notes due 2012 (the "Securities"). The Securities are to be fully
and unconditionally guaranteed jointly and severally on an unsecured, senior
subordinated basis (each such existing guarantee, a "Subsidiary Guarantee," and
collectively, the "Subsidiary Guarantees") initially by all the United States
restricted subsidiaries of the Company that are signatories to this Agreement
(each such existing guarantor, a "Subsidiary Guarantor," and collectively, the
"Subsidiary Guarantors"). The Securities are to be issued under an indenture
(the "Indenture") to be dated as of November 20, 2002, between the Company, the
Subsidiary Guarantors and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the
"Trustee").
To the extent there are no additional Underwriters listed on Schedule I
hereto other than you, the term Representatives as used herein shall mean you,
as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context
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requires. The use of the neuter in this Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used herein are defined in Section
17 hereof.
Concurrently with the offering of the Securities, it is understood that
Crown Cork & Seal Company, Inc., a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Parent"), is offering to sell 10,500,000
shares of common stock, $0.01 par value ("Common Stock"), of the Company, and is
offering to sell 1,500,000 shares of Common Stock ("Option Shares") if the
over-allotment option is exercised in full, pursuant to a prospectus dated
November 14, 2002 (the "Common Stock Offering"). In addition, Crown has agreed
to sell an additional 1,500,000 shares of Common Stock (the "Incremental
Shares"), and the Underwriters have agreed to purchase the Incremental Shares
from the Underwriters. Following the consummation of the aforementioned purchase
by the Selling Securityholder of the Incremental Shares, Crown may use the
Incremental Shares to satisfy any obligation it may have to deliver Option
Shares.
1. Representations and Warranties.
------------------------------
(i) The Company, with respect to itself and each of the Subsidiary
Guarantors, and each of the Subsidiary Guarantors, with respect to itself,
as to those matters set forth in paragraphs (a), (b), (c), (d), (g), (h),
(i), (k), (l), (o) and (y), jointly and severally represent and warrant to,
and agree with, each Underwriter as set forth below in this Section 1(i).
(a) The Company and the Subsidiary Guarantors have prepared and filed
with the Commission a registration statement (file number 333-88878) on
Form S-1, including a related preliminary prospectus, for registration
under the Act of the offering and sale of the Securities. The Company and
the Subsidiary Guarantors may have filed one or more amendments thereto,
including a related preliminary prospectus, each of which has previously
been furnished to you. The Company and the Subsidiary Guarantors will next
file with the Commission either (1) prior to the Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of final prospectus) or (2) after the Effective Date of
such registration statement, a final prospectus in accordance with Rules
430A and 424(b). In the case of clause (2), the Company and the Subsidiary
Guarantors have included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such registration
statement and the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Company
and the Subsidiary Guarantors have advised you, prior to the Execution
Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined in Section 3 below) the
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein
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or necessary in order to make the statements therein not misleading; on the
Effective Date and on the Closing Date, the Indenture did or will comply in
all material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, the Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company and the Subsidiary Guarantors make no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(c) Each of the Company, its Subsidiaries and the Subsidiary
Guarantors has been duly incorporated and is validly existing as a
corporation (or if not a corporation, has been duly formed and is validly
existing) under the laws of the jurisdiction in which it is chartered or
organized and, with respect to the Company and any such Subsidiary
Guarantor or Subsidiary incorporated in the United States, is a corporation
in good standing under such laws and, in all cases, has corporate power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to so qualify or be in good
standing would not have a Material Adverse Effect.
(d) All the outstanding shares of capital stock of each Subsidiary and
Subsidiary Guarantor have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in the
Prospectus and assuming consummation of the transactions described in the
Prospectus, all outstanding shares of capital stock of the Subsidiaries and
the Subsidiary Guarantors are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances,
except for any such perfected security interests or other security
interests, claims, liens or encumbrances that would not have a Material
Adverse Effect, except as set forth in the Prospectus and except for the
lien on the capital stock of the Subsidiaries and the Subsidiary Guarantors
under the Amended and Restated Credit Agreement, dated February 4, 2002,
among the Parent, the subsidiary borrowers referred to therein, the lenders
referred to therein and JPMorgan Chase Bank, as administrative agent (the
"Crown Credit Agreement"), which lien will be released with respect to the
capital stock of the Subsidiaries and Subsidiary Guarantors on the Closing
Date.
(e) The Company's authorized equity capitalization is as set forth in
the Prospectus; the capital stock of the Company conforms in all material
respects to the
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description thereof contained in the Prospectus; the outstanding shares of
Common Stock (including the Common Stock and the Option Shares being sold in the
Common Stock Offering) have been duly and validly authorized and issued and are
fully paid and nonassessable; the Common Stock being sold in the Common Stock
Offering are, and the Option Shares to be sold if the Underwriters exercise
their over-allotment option will be, duly listed, admitted and authorized for
quotation on the Nasdaq National Market; and, except as set forth in the
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership interests
in the Company are outstanding.
(f) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required; and the statements in the Prospectus under the headings "Material
United States Federal Income Tax Consequences," "Our Business--Intellectual
Property" and "Our Business--Legal Matters" fairly summarize the matters
therein described.
(g) This Agreement has been duly authorized, executed and delivered by
each of the Company and the Subsidiary Guarantors and constitutes a valid
and binding obligation of each of the Company and the Subsidiary Guarantors
enforceable in accordance with its terms.
(h) The Indenture has been duly authorized, executed and delivered by
the Company and the Subsidiary Guarantors, has been duly qualified under
the Trust Indenture Act, and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a legal, valid and binding
instrument enforceable against each of the Company and the Subsidiary
Guarantors in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at law); and
the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this Agreement,
will constitute legal, valid and binding obligations of each of the Company
and the Subsidiary Guarantors entitled to the benefits of the Indenture
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
(i) The Subsidiary Guarantees have been duly authorized by each
Subsidiary Guarantor and, when the Securities are executed and
authenticated in accordance with provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, will be valid and binding obligations of each Subsidiary
Guarantor, enforceable in accordance with their terms (subject to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting
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creditors' rights generally from time to time in effect, and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law), and will be
entitled to the benefits of the Indenture.
(j) None of the Company or any Subsidiary Guarantor is and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus, none of
the Company or any Subsidiary Guarantor will be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(k) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required for the consummation by
the Company and the Subsidiary Guarantors of the transactions contemplated
herein, except such as have been obtained under the Act and the Trust
Indenture Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Prospectus, and except where the failure to obtain such consent, approval,
authorization, filing or order would not have a material adverse effect on
the issuance and sale of the Securities or the consummation of any of the
other transactions contemplated herein.
(l) Neither the issuance and sale of the Securities nor the
consummation of any other of the transactions contemplated herein nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, any Subsidiary or any Subsidiary
Guarantor pursuant to (i) the charter, by-laws or other similar
organizational document of the Company, any Subsidiary or any Subsidiary
Guarantor, (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company, any Subsidiary or
any Subsidiary Guarantor is a party or bound or to which its or their
property is subject or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company, any Subsidiary or any Subsidiary
Guarantor of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company, any Subsidiary or any Subsidiary Guarantor or any of its or
their properties, except, in the case of clauses (ii) and (iii) above for
such conflict, breach, violation or imposition that would not have a
material adverse effect on the issuance and sale of the securities or the
consummation of any of the other transactions contemplated herein.
(m) Before giving effect to the Common Stock Offering, the Parent owns
all of the outstanding stock of the Company.
(n) The combined historical financial statements of the Company and
its consolidated subsidiaries included in the Prospectus and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis
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throughout the periods involved (except as otherwise noted therein). The
selected financial data set forth under the caption "Selected Financial
Data" in the Prospectus and Registration Statement fairly present, on the
basis stated in the Prospectus and the Registration Statement, the
information included therein. The pro forma financial statements included
in the Prospectus and the Registration Statement include assumptions that
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the
pro forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma financial
statements included in the Prospectus and the Registration Statement. The
pro forma financial statements included in the Prospectus and the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X under the Act and the
pro forma adjustments have been properly applied to the historical amounts
in the compilation of those statements.
(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, any Subsidiary or any Subsidiary Guarantor or its or their
property is pending or, to the knowledge of the Company, threatened that
(i) could reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) would have a Material Adverse
Effect.
(p) Each of the Company and each of the Subsidiaries owns or leases
all such properties as are necessary to the conduct of its operations as
presently conducted, except where the failure to own or lease such
properties would not have a Material Adverse Effect.
(q) Neither the Company nor any Subsidiary is in violation or default
of (i) any provision of its charter, bylaws or other similar organizational
document, (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such Subsidiary or any of its properties,
as applicable, except, in the case of clause (ii) or (iii), for any such
violation or default that would not have a Material Adverse Effect.
(r) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their report with respect to the audited combined financial statements
included in the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(s) There are no transfer taxes or other similar fees or charges under
federal law or the laws of any state, or any political subdivision thereof,
required to be paid by the Company or any Subsidiary in connection with the
execution and delivery of this Agreement.
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(t) The Company and each of its Subsidiaries has filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to
file would not have a Material Adverse Effect) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a Material Adverse Effect.
(u) No labor problem or dispute with the employees of the Company or
any of its Subsidiaries exists or, to the Company's knowledge, is
threatened or imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or its
Subsidiaries' principal suppliers, contractors or customers, that could
have a Material Adverse Effect.
(v) The Company and each Subsidiary are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any Subsidiary or their respective businesses,
assets, employees, officers and directors are in full force and effect; the
Company and the Subsidiaries are in compliance with the terms of such
policies and instruments in all material respects; and there are no claims
by the Company or any Subsidiary under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor any Subsidiary has
been refused any insurance coverage sought or applied for; and neither the
Company nor any Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect.
(w) Assuming consummation of the transactions described in the
Prospectus, no Subsidiary is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary's property or assets to the Company or
any other Subsidiary, except as described in or contemplated by the
Prospectus or pursuant to the Indenture or the Credit Agreement.
(x) The Company and each of the Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess such licenses,
certificates, permits or other authorizations would not have a Material
Adverse Effect, and neither the Company nor any such Subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
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(y) The Company, each Subsidiary and each Subsidiary Guarantor maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(z) The Company has not taken, directly or indirectly, any action that has
constituted or that was designed to, or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
(aa) Except as set forth in the Prospectus, the Company and the
Subsidiaries are (i) in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive or comply with
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect. Except as set
forth in the Prospectus, neither the Company nor any of the Subsidiaries has
been named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended.
(bb) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company and the Subsidiaries, in the course of which it seeks
to identify and evaluate associated material costs and liabilities (including,
without limitation, any material capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws, or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties). On the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse Effect.
(cc) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx xxx
Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974 ("ERISA") and the
regulations and published interpretations thereunder with respect to each "plan"
(as defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and the Subsidiaries are
eligible to participate and each such plan is in
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compliance in all material respects with the presently applicable provisions of
ERISA and such regulations and published interpretations. The Company and the
Subsidiaries have not incurred any unpaid liability to the Pension Benefit
Guaranty Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title IV of ERISA.
(dd) As of the Closing Date, the subsidiaries listed on Annex A attached
hereto will be the only significant subsidiaries of the Company as defined by
Rule 1-02 of Regulation S-X (the "Subsidiaries").
(ee) The Company or the Subsidiaries on the Closing Date will own, possess,
license or have other rights to use, all patents, patent applications, trade and
service marks, trade and service xxxx registrations, trade names, copyrights,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of their
respective businesses as now conducted or as proposed in the Prospectus to be
conducted, except where the failure to own, possess, license or have other such
rights would not have a Material Adverse Effect. Except as set forth in the
Prospectus, (i) there are no rights of third parties to any such Intellectual
Property, except for commercial shrink-wrap software; (ii) to the knowledge of
the Company, there is no material infringement by third parties of any such
Intellectual Property; (iii) there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or claim by any third party
challenging the Company's or the Subsidiaries' rights in or to any such
Intellectual Property that would have a Material Adverse Effect, and the Company
is unaware of any facts which would form a reasonable basis for any such claim;
(iv) there is no pending or, to the knowledge of the Company, threatened action,
suit, proceeding or claim by any third party challenging the validity or scope
of any such Intellectual Property that would have a Material Adverse Effect, and
the Company is unaware of any facts which would form a reasonable basis for any
such claim; (v) there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or claim by any third party that the Company
or any Subsidiary infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others that would have a
Material Adverse Effect, and the Company is unaware of any other fact which
would form a reasonable basis for any such claim; (vi) to the knowledge of the
Company, there is no valid and subsisting U.S. patent or published U.S. patent
application that would preclude the Company from practicing any material
Intellectual Property that is owned by or licensed to the Company or any
Subsidiary; and (vii) to the knowledge of the Company, all material patents
owned by the Company or the Subsidiaries are valid and enforceable.
(ff) The statements contained in the Prospectus under the captions "Risk
Factors - We Enjoy Only Limited Protection for Our Intellectual Property," "Risk
Factors - If We Lose An Existing Lawsuit Regarding Oxbar, We May Lose A
Potential Source of Revenue," and "Business - Intellectual Property," insofar as
such statements summarize legal matters, agreements, documents, or proceedings
discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings.
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Any certificate signed by any officer of the Company or any Subsidiary Guarantor
and delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Company or such Subsidiary Guarantor, as to matters covered
thereby, to each Underwriter.
(ii) The Parent represents and warrants to, and agrees with, each
Underwriter that:
(a) The Parent has been duly incorporated and is validly existing as a
corporation under the laws of the jurisdiction in which it is organized and
is a corporation in good standing under the laws of such jurisdiction and
has corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires
such qualification, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the Parent,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth or contemplated in the Prospectus
(exclusive of any supplement thereto).
(b) This Agreement has been duly authorized, executed and delivered by
the Parent and constitutes a valid and binding obligation of the Parent
enforceable in accordance with its terms.
(c) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Parent
of the transactions contemplated herein, except such as may have been
obtained under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been
obtained, and except where the failure to obtain such consent, approval,
authorization, or order would not have a material adverse effect on the
issuance and sale of the Securities or the consummation of any of the other
transactions contemplated herein.
(d) Neither the issuance and sale of the Securities being sold
hereunder nor the consummation of any other of the transactions
contemplated herein or the fulfillment of the terms hereof by the Parent
will conflict with, result in a breach or violation of, or constitute a
default under (i) any law applicable to the Parent, (ii) the charter or
by-laws of the Parent, (iii) the terms of any indenture or other agreement
or instrument to which the Parent is a party or bound, or (iv) any
judgment, order or decree applicable to the Parent of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Parent, except, in the case of clauses (i), (iii) and
(iv), for such conflict, breach, violation or default that would not have a
material adverse effect on the issuance and sale of the Securities or the
consummation of any of the other transactions contemplated herein.
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(e) The Parent has no reason to believe that the representations and
warranties of the Company contained in this Section 1 are not true and
correct, is familiar with the Registration Statement and has no knowledge
of any material fact, condition or information not disclosed in the
Prospectus or any supplement thereto which has adversely affected or may
adversely affect the business of the Company or any of its subsidiaries;
and the sale of Securities by the Parent pursuant hereto is not prompted by
any information concerning the Company or any of its subsidiaries which is
not set forth in the Prospectus or any supplement thereto.
(f) In respect of any statements in or omissions from the Registration
Statement or the Prospectus or any supplements thereto made in reliance
upon and in conformity with information regarding the Parent furnished in
writing to the Company by the Parent specifically for use in connection
with the preparation thereof, the Parent hereby makes the same
representations and warranties to each Underwriter as the Company makes to
such Underwriter under paragraph (i)(b) of this Section.
Any certificate signed by any officer of the Parent and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Parent,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties set forth herein, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 95.51% of the
principal amount thereof, plus accrued interest, if any, on the Securities from
November 20, 2002 to the Closing Date, the principal amount of the Securities
set forth opposite such Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at 10:00 AM, New York City time, on November 20, 2002, or at such time
on such later date not more than three Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed by
agreement among the Representatives, the Company and the Parent or as provided
in Section 9 hereof (such date and time of delivery and payment for the
Securities being called herein the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price of the Securities to or upon the order of
the Company by wire transfer payable in same-day funds to the account specified
by the Company. Delivery of the Securities shall be made through the facilities
of The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
5. Agreements.
(i) Each of the Company and the Subsidiary Guarantors agrees with the
several Underwriters that:
11
(a) It will use its best efforts to cause the Registration Statement, if
not effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities, it will
not file any amendment of the Registration Statement or supplement to the
Prospectus or any Rule 462(b) Registration Statement unless you have been
furnished a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), it will cause the Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely filing. It
will promptly advise the Representatives (1) when the Registration Statement, if
not effective at the Execution Time, shall have become effective, (2) when the
Prospectus, and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the Prospectus or
for any additional information, (5) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. It will use its best efforts
to prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any 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 shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act or the rules thereunder, it
promptly will (1) notify the Representatives of any such event, (2) prepare and
file with the Commission, subject to the second sentence of paragraph (i)(a) of
this Section 5, an amendment or supplement which will correct such statement or
omission or effect such compliance and (3) supply any supplemented Prospectus to
you in such quantities as you may reasonably request.
(c) Through the timely filing of periodic reports under the Exchange Act,
the Company will make generally available to its security holders and to the
Representatives an earnings statement or statements of the Company, its
Subsidiaries and the Subsidiary Guarantors which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
12
(d) The Company and the Subsidiary Guarantors will furnish to the
Representatives and counsel for the Underwriters signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto) and,
so long as delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of each Preliminary Prospectus and the Prospectus and
any supplement thereto as the Representatives may reasonably request.
(e) The Company and the Subsidiary Guarantors will arrange, if necessary,
for the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution of the
Securities and will pay any fee of the National Association of Securities
Dealers, Inc., in connection with its review of the offering; provided that in
no event shall the Company or any Subsidiary Guarantor be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to
execute a general consent to service of process in any jurisdiction in which
such a consent has not been previously filed or to subject itself to taxation in
any jurisdiction wherein it would not otherwise be subject to tax but for the
requirements of this paragraph.
(f) It will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx
Inc. and Deutsche Bank Securities Inc., offer, sell, contract to sell, pledge,
or otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person with
whom the Company or any affiliate of the Company has an agreement with respect
to securities of the Company), directly or indirectly, any high yield debt
securities issued or guaranteed by the Company or warrants to purchase high
yield debt securities of the Company (other than the Securities) or publicly
announce an intention to effect any such transaction, for a period of 180 days
after the date of this Agreement.
(g) It will not take, directly or indirectly, any action that constitutes
or that is designed to or might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
(ii) The Parent agrees with the several Underwriters that:
(a) The Parent will not, without the prior written consent of Xxxxxxx Xxxxx
Barney Inc. and Deutsche Bank Securities Inc., offer, sell, contract to sell,
pledge or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Parent or any affiliate of the Parent or any person with whom
the Parent or any affiliate of the Parent has an agreement with respect to
securities of the Company), directly or indirectly, any high yield debt
securities issued or guaranteed by the Company or warrants to purchase high
yield debt securities of the Company or publicly
13
announce an intention to effect any such transaction, for a period of 180 days
after the date of this Agreement.
(b) The Parent will advise the Representatives promptly, and if requested
by the Representatives, will confirm such advice in writing, (1) until the
Closing Date, of any material change in the Company's condition (financial or
otherwise), earnings, business or properties or any new material information
relating to the Company or relating to any matter stated in the Prospectus which
comes to the attention of the Parent and (2) so long as delivery of a prospectus
relating to the Securities by an underwriter or dealer may be required under the
Act, of any change in information in the Registration Statement or the
Prospectus relating to the Parent.
(c) The Parent agrees to pay the costs and expenses relating to the
following matters: (1) the preparation, printing or reproduction and filing with
the Commission of the Registration Statement (including financial statements and
exhibits thereto), each Preliminary Prospectus, the Prospectus and each
amendment or supplement to any of them; (2) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, each Preliminary
Prospectus, the Prospectus and all amendments or supplements to any of them, as
may, in each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (3) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (4) the printing (or reproduction) and delivery of
this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the
Securities; (5) the registration of the Securities under the Exchange Act; (6)
any registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (7) any filings required to be made with the
National Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
filings); (8) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (9) the fees and expenses of the Company's, the
Subsidiary Guarantors' and the Parent's accountants and the fees and expenses of
counsel (including local and special counsel) for the Company, the Subsidiary
Guarantors and the Parent; and (10) all other costs and expenses incident to the
performance by the Company, the Subsidiary Guarantors and the Parent of their
obligations hereunder.
(iii) Each Underwriter severally represents and agrees that:
(a) it has not offered or sold and, prior to the expiry of six months from
the Closing Date, will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the
14
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995;
(b) it has only communicated and caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 ("FSMA")) received by it in
connection with the issue or sale of any Securities in circumstances in
which section 21(1) of the FSMA does not apply to the Company;
(c) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom; and
(d) the offer in The Netherlands of the Securities is exclusively
limited to persons who trade or invest in securities in the conduct of a
profession or business (which include banks, stockbrokers, insurance
companies, pension funds, other institutional investors and finance
companies and treasury departments of large enterprises).
6. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company,
the Subsidiary Guarantors and the Parent contained herein as of the Execution
Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to
the accuracy of the statements of the Company, the Subsidiary Guarantors and the
Parent made in any certificates pursuant to the provisions hereof, to the
performance by the Company, the Subsidiary Guarantors and the Parent of their
respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM
New York City time on such date or (ii) 9:30 AM on the Business Day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New York City time on such date;
if filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Prospectus, and any such supplement, will be
filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested and caused Dechert, counsel for
the Company and the Subsidiary Guarantors, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) each of the Company and the Subsidiary Guarantors has
been duly
15
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is incorporated, with
corporate power and corporate authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Prospectus, and, in the case of the Company, is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
the Commonwealth of Pennsylvania;
(ii) except as otherwise set forth in the Prospectus, the outstanding
shares of capital stock of Constar, Inc. and Constar Foreign Holdings, Inc.
owned by the Company are owned either directly or through wholly owned
subsidiaries free and clear of any perfected security interest and, to the
knowledge of such counsel, any other security interest, claim, lien or
encumbrance; and to the knowledge of such counsel, based solely upon a
report as to UCC financing statements on file against the Company, Constar
Foreign Holdings, Inc., Crown Cork & Seal Company, Inc., Crown UK Holdings
Ltd. and Crown Cork Netherlands Holding BV with the Secretary of State of
the State of New York, the Secretary of State of the Commonwealth of
Pennsylvania and the Secretary of State of the State of Delaware, there is
no security interest, claim, lien or encumbrance with respect to the
outstanding shares of capital stock of Constar International Holland
(Plastics) BV and Constar International UK Ltd.;
(iii) the Company's authorized equity capitalization is as set forth
in the Prospectus and the Securities conform in all material respects to
the description thereof contained in the Prospectus;
(iv) the Indenture has been duly authorized, executed and delivered by
the Company and the Subsidiary Guarantors, has been duly qualified under
the Trust Indenture Act, and, assuming due authentication, execution and
delivery by the Trustee, constitutes a legal, valid and binding instrument
enforceable against the Company and the Subsidiary Guarantors in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law); and the Securities
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, will constitute legal,
valid and binding obligations of the Company and the Subsidiary Guarantors
entitled to the benefits of the Indenture;
(v) the Subsidiary Guarantees have been duly authorized and, when the
Securities have been duly executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute legal, valid and
binding obligations of each Subsidiary Guarantor, enforceable in accordance
with their terms (subject, as to enforcement and remedies, to applicable
bankruptcy, reorganization,
16
insolvency, moratorium or other laws affecting creditors' rights generally
from time to time in effect, and to general principles of equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered in a
proceeding in equity or at law) and entitled to the benefits of the
Indenture;
(vi) the statements included in the Prospectus under the heading
"Material United States Federal Tax Consequences," insofar as such
statements constitute a summary of the legal matters or documents referred
to therein, fairly present the information called for with respect to such
legal matters or documents;
(vii) the Registration Statement has become effective under the Act;
any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or threatened;
(viii) this Agreement has been duly authorized, executed and delivered
by the Company and the Subsidiary Guarantors;
(ix) the Company is not and, after giving effect to the offering and
sale of the Securities (including the concurrent Common Stock Offering and
the Company's concurrent receipt of term loans as described in the
Prospectus) 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, as amended;
(x) no consent, approval, authorization, filing with or order of any
Pennsylvania, New York, Delaware or U.S. Federal court or governmental
agency or body is required for the consummation by the Company and the
Subsidiary Guarantors of the transactions contemplated herein, except (1)
such as have been obtained under the Act, (2) such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities or the Subsidiary Guarantees by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus, as to which such counsel need express no opinion, (3) such
other approvals (specified in such opinion) as have been obtained and (4)
except where the failure to obtain such consent, approval, authorization,
filing or order would not have a material adverse effect on the issuance
and sale of the Securities or the Subsidiary Guarantees or the consummation
of any of the other transactions contemplated herein;
(xi) neither the execution and delivery of the Indenture, nor the
issue and sale of the Securities, nor the consummation of any other of the
transactions contemplated herein nor the fulfillment of the terms hereof
will (1) conflict with or result in a breach or violation of the charter or
by-laws of the Company or the Subsidiary Guarantors, (2) result in a
material breach or violation of, or the
17
imposition of any material lien, charge or encumbrance upon any property or
assets of the Company, its Subsidiaries or the Subsidiary Guarantors
pursuant to the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument that is material to the Company and its
subsidiaries, taken as a whole, and that is known to such counsel after due
inquiry to which the Company, its Subsidiaries or the Subsidiary Guarantors
is a party or bound or to which its or their property is subject, or (3)
conflict with or violate in any material respect any Delaware corporate,
Pennsylvania, New York or U.S. Federal statute, law, rule or regulation
applicable to the Company, its Subsidiaries or the Subsidiary Guarantors,
or any judgment, order or decree known to such counsel after due inquiry to
be applicable to the Company, its Subsidiaries or the Subsidiary Guarantors
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company, its
Subsidiaries or the Subsidiary Guarantors or any of its or their properties
(other than U.S. Federal or state securities or blue sky laws, other
anti-fraud laws and fraudulent transfer laws and bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, as to which such counsel need
not express any opinion); and
(xii) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may state that their opinion is limited
to matters governed by the Federal laws of the United States of America, the law
of the Commonwealth of Pennsylvania, the law of the State of New York and the
General Corporation Law of the State of Delaware. In rendering such opinion,
such counsel may rely (A) as to matters involving the application of laws of any
jurisdiction other than the Commonwealth of Pennsylvania, the State of Delaware,
the State of New York or the Federal laws of the United States and as to matters
involving the application of laws relating to intellectual property, to the
extent they deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent they deem proper, on written statements or certificates of
responsible officers of the Company, the Subsidiary Guarantors and public
officials. References to the Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
Such counsel shall also have furnished to the Underwriters a written statement,
addressed to the Underwriters and dated the Closing Date (or the applicable
settlement date) to the effect that (i) the Registration Statement and the
Prospectus (other than the financial statements (including pro forma financial
statements and notes to financial statements or pro forma financial statements)
and related schedules and other financial, accounting or statistical information
included in or excluded from the Registration Statement or the Prospectus, as to
which such counsel need express no belief) appear on their face to be
appropriately responsive in all material respects to the requirements of the Act
and the Trust Indenture Act and the respective rules and regulations thereunder
and (ii) such counsel participated in conferences with officers and
representatives of the Company,
18
representatives of the Subsidiary Guarantors, PricewaterhouseCoopers LLP, the
Underwriters, the Parent and Cleary, Gottlieb, Xxxxx & Xxxxxxxx in connection
with the preparation of the Registration Statement, and based on the foregoing
and without assuming responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement except as provided in
clause 6(b)(vi) above or making any independent check or verification thereof
(and relying as to factual matters upon the statements of officers and other
representatives of the Company, the Subsidiary Guarantors, the Parent and
others), no facts have come to the attention of such counsel which lead them to
believe that (I) the Registration Statement, as of the Effective Date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (II) the Prospectus, as of its date and as of the
Closing Date (and any applicable settlement date), contains any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that such
counsel need not express a belief as to any financial statements (including pro
forma financial statements and notes to financial statements or pro forma
financial statements) and related schedules, and other financial, accounting or
statistical information included in or excluded from the Registration Statement
or the Prospectus.
(c) The Parent shall have requested and caused Dechert, counsel for the
Parent, to have furnished to the Representatives their opinion dated the Closing
Date and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by
the Parent;
(ii) no consent, approval, authorization or order of any Pennsylvania
or U.S. Federal court or governmental agency or body is required for the
consummation by the Parent of the transactions contemplated herein, except
(1) such as may have been obtained under the Act, (2) such as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the
manner contemplated in this Agreement and in the Prospectus, as to which
such counsel need express no opinion, (3) such other approvals (specified
in such opinion) as have been obtained and (4) where the failure to obtain
such consent, approval, authorization, or order would not have a material
adverse effect on the issuance and sale of the Securities or the
consummation of any of the other transactions contemplated herein; and
(iii) neither the issue or sale of the Securities being sold hereunder
nor the consummation of any other of the transactions contemplated herein
by the Parent nor the fulfillment of the terms hereof by the Parent will
(1) conflict with or result in a breach or violation of the charter or
by-laws of the Parent, (2) result in a material breach or violation of, or
the imposition of any material lien, charge or encumbrance upon any
property or assets of the Parent pursuant to the terms of
19
any material indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument known to such counsel after due inquiry to which the
Parent is a party or bound or to which its property is subject, or (3)
conflict with or violate in any material respect any Pennsylvania, New York
or U.S. Federal statute, law, rule or regulation applicable to the Parent,
or any judgment, order or decree known to such counsel after due inquiry to
be applicable to the Parent of any court, regulatory body, administrative
agency, governmental body, or arbitrator or other authority having
jurisdiction over the Parent or any of its properties (other than U.S.
Federal or state securities or blue sky laws, other anti-fraud laws and
fraudulent transfer laws and bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights, as to which such counsel need not express any
opinion).
In rendering such opinion, such counsel may state that their opinion is limited
to matters governed by the Federal law of the United States of America, the law
of the Commonwealth of Pennsylvania and the law of the State of New York. In
rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the Commonwealth of
Pennsylvania, the State of New York or the Federal laws of the United States, to
the extent they deem proper and specified in such opinion, upon the opinion of
other counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Parent and public officials.
(d) The Company shall have requested and caused Xxxxxxxx Xxxxxxxx, special
counsel for the Company and the Parent, to have furnished to the Representatives
an opinion, dated the Closing Date and addressed to the Representatives, to the
effect that the statements included in the Prospectus under the heading "Our
Business--Intellectual Property," insofar as such statements constitute a
summary of the legal matters or documents referred to therein, fairly present
the information called for with respect to such legal matters or documents.
(e) The Company shall have requested and caused Xxxxxxx X. Xxxxxxxxx, Vice
President, Secretary and General Counsel of the Parent, to have furnished to the
Representatives an opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) each of the Company and the Subsidiary Guarantors has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is incorporated, with
corporate power and corporate authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Prospectus, and, in the case of the Company, is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
the Commonwealth of Pennsylvania;
20
(ii) the statements included in the Prospectus under the heading "Our
Business--Legal Matters," insofar as such statements constitute a summary
of the legal matters or documents referred to therein, fairly present the
information called for with respect to such legal matters or documents;
(iii) no consent, approval, authorization, filing with or order of any
court or governmental agency or body is required for the consummation by
the Parent, the Company or the Subsidiary Guarantors of the transactions
contemplated herein, except (1) such as have been obtained under the Act,
(2) such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus, as to which such counsel need express no opinion and (3) such
other approvals (specified in such opinion) as have been obtained;
(iv) neither the execution and delivery of the Indenture, nor the sale
of the Securities, nor the consummation of any other of the transactions
contemplated herein nor the fulfillment of the terms hereof will
(1) conflict with or result in a breach or violation of the charter or
by-laws of the Company or the Subsidiary Guarantors, (2) result in a
material breach or violation of, or the imposition of any material lien,
charge or encumbrance upon any property or assets of the Parent, the
Company, its Subsidiaries or the Subsidiary Guarantors pursuant to the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument that is material to the Company and its
subsidiaries, taken as a whole, known to such counsel after due inquiry to
which the Parent, the Company, its Subsidiaries or the Subsidiary
Guarantors is a party or bound or to which any of its or their property is
subject, or (3) conflict with or violate in any material respect any
Pennsylvania, New York or U.S. Federal statute, law, rule or regulation
applicable to the Parent, the Company, its Subsidiaries or the Subsidiary
Guarantors, or any judgment or order applicable to the Parent, the Company,
its Subsidiaries or the Subsidiary Guarantors of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Parent, the Company, its
Subsidiaries or the Subsidiary Guarantors or any of its or their properties
(other than U.S. Federal or state securities or blue sky laws, other
anti-fraud laws and fraudulent transfer laws and bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, as to which such counsel need
not express any opinion); and
(v) there is no pending or, to such counsel's knowledge, threatened
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Parent, the Company, its
Subsidiaries or the Subsidiary Guarantors or its or their property of a
character required to be disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus, and there is no franchise,
contract or other document of a character required to be described in the
Registration Statement or the
21
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date (or the
applicable settlement date) to the effect that (i) the Registration
Statement and the Prospectus (other than the financial statements
(including pro forma financial statements and notes to financial statements
or pro forma financial statements) and related schedules and other
financial, accounting or statistical information included in or excluded
from the Registration Statement or the Prospectus, as to which such counsel
need express no belief) appear on their face to be appropriately responsive
in all material respects to the requirements of the Act and the Trust
Indenture Act and the respective rules and regulations thereunder and (ii)
no facts have come to the attention of such counsel which lead it to
believe that (I) the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading or (II) the Prospectus, as of its
date and as of the Closing Date (and any applicable settlement date),
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that such counsel need not express a
belief as to any financial statements (including pro forma financial
statements and notes to financial statements or pro forma financial
statements) and related schedules, and other financial, accounting or
statistical information included in or excluded from the Registration
Statement or the Prospectus.
In rendering such opinion, such counsel may state that his opinion is
limited to matters governed by the Federal law of the United States of
America and the law of the Commonwealth of Pennsylvania.
(f) The Representatives shall have received from Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect
to the issuance and sale of the Securities, the Indenture, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company, the Subsidiary Guarantors and the Parent shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(g) The Company and the Subsidiary Guarantors shall have furnished to
the Representatives a certificate of the Company and each Subsidiary
Guarantor, signed by the Chairman of the Board or the President, and the
principal financial or accounting officer of the Company, and by an
executive officer of each of the Subsidiary Guarantors dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplements to the
Prospectus and this Agreement and that:
22
(i) the representations and warranties of the Company and each
Subsidiary Guarantor in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on the Closing Date and
the Company and each Subsidiary Guarantor has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's or any Subsidiary Guarantor's knowledge,
threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(h) The Parent shall have furnished to the Representatives a certificate,
signed by the Chairman of the Board or the President, and the principal
financial or accounting officer of the Parent, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplements to the Prospectus and
this Agreement and that:
(i) the representations and warranties of the Parent in this Agreement
are true and correct on and as of the Closing Date to the same effect as if
made on the Closing Date; and
(ii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(i) The Company shall have requested and caused PricewaterhouseCoopers LLP
to have furnished to the Representatives, on November 14, 2002, and at the
Closing Date, letters, dated respectively as of November 14, 2002, and as of the
Closing Date and addressed to the Representatives, substantially in the form of
Exhibit A.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto), there shall
not have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (i) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the
23
Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the sole judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(l) On or prior to the Closing Date, the Company shall have (i)
consummated the transactions contemplated under the caption "Relationship
with Crown Cork & Seal Company, Inc." in the Prospectus, (ii) obtained $150
million of term loans, as described in the Prospectus, and (iii) entered
into a revolving credit facility of at least $75 million, as described in
the Prospectus.
(m) On or prior to the Closing Date, the Parent shall have completed
the Common Stock Offering.
(n) The Parent shall have received a written release of the liens on
the Common Stock and the capital stock of the Subsidiaries from the lenders
under the Crown Credit Agreement.
(o) Prior to the Closing Date, the Company and the Subsidiary
Guarantors shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Dechert, counsel for the Company and the Subsidiary Guarantors,
at 4000 Xxxx Atlantic Tower, 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, on the
Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company, the Subsidiary Guarantors or
the Parent to perform any agreement herein or comply with any
24
provision hereof other than by reason of a default by any of the Underwriters,
the Company will reimburse the Underwriters severally through Xxxxxxx Xxxxx
Barney Inc. on demand for all reasonable out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law 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 a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof 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 agree to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein; provided further that with
respect to any untrue statement or omission of material fact made in any
Preliminary Prospectus, the indemnity agreement contained in this Section 8(a)
shall not inure to the benefit of any Underwriter from whom the person asserting
any such loss, claim, damage or liability purchased the securities concerned, to
the extent that any such loss, claim, damage or liability of such Underwriter
occurs under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such person,
(y) the untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, each person who controls the Company within the meaning
of either the Act or the Exchange Act, and the Parent, to the same extent as the
indemnity to each Underwriter set forth in paragraph (a) of this Section (a),
but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter
25
may otherwise have. Each of the Company and the Parent acknowledge that the
statements set forth in the last paragraph of the cover page regarding delivery
of the Securities and, under the heading "Underwriting," (i) the list of
underwriters and their respective participation in the sale of the Securities,
(ii) the paragraph related to concessions and reallowances, (iii) the paragraphs
related to stabilization, syndicate covering transactions and penalty bids, (iv)
the paragraph related to electronic distribution of any Preliminary Prospectus
or the Prospectus and allocation for electronic distribution of the Securities
and (v) the paragraph related to the assumption by Lazard Freres & Co. LLC (the
"Independent Underwriter") of all responsibilities as a "qualified independent
underwriter" (within the meaning of NASD conduct rule 2720), constitute the only
written information furnished to the Company by or on behalf of the several
Underwriters through the Representatives specifically for inclusion in any
Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) of this Section 8 unless and to the extent
it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) of this Section 8. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (1) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (2) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (3) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (4) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding. An indemnifying
party shall not be liable under this Section 8 to any indemnified party
regarding any settlement or compromise or consent to the
26
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall (i) any Underwriter (except as may be provided in
any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder or (ii) the
Independent Underwriter in its capacity as "qualified independent underwriter"
(within the meaning of National Association of Securities Dealers, Inc. Conduct
Rule 2720) be responsible for any amount in excess of the compensation received
by the Independent Underwriter for acting in such capacity. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by the Company, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Benefits received by the Independent Underwriter in its
capacity as "qualified independent underwriter" shall be deemed to be equal to
the compensation received by the Independent Underwriter for acting in such
capacity. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
27
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The liability of the Parent under the Parent's representations and
warranties contained in Section 1 hereof and under the indemnity and
contribution agreements contained in this Section 8 shall be limited to an
amount equal to the initial public offering price of the Securities sold to the
Underwriters, after deducting discounts and commissions received by the
Underwriters. The Company and the Parent may agree, as between themselves and
without limiting the rights of the Underwriters under this Agreement, as to the
respective amounts of such liability for which they each shall be responsible.
(f) Without limitation of and in addition to its obligations under the
other paragraphs of this Section 8, the Company agrees to indemnify and hold
harmless the Independent Underwriter, its directors, officers, employees and
agents and each person who controls Independent Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject, insofar as such losses, claims, damages or liabilities (or
action in respect thereof) arise out of or are based upon Independent
Underwriter's acting as a "qualified independent underwriter" (within the
meaning of National Association of Securities Dealers, Inc. Conduct Rule 2720)
in connection with the offering contemplated by this Agreement, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability results from the gross negligence or willful
misconduct of the Independent Underwriter.
(g) In the event that the indemnity and contribution provided in paragraph
(a), (d) or (f) of this Section 8 is unavailable to or insufficient to hold
harmless any Underwriter, any director, officer, employee or agent of any
Underwriter or any person who controls any Underwriter within the meaning of
either the Act or the Exchange Act by reason of the Company having failed to
fulfill in any respect its payment obligations under any such paragraph, the
Parent agrees to indemnify and hold harmless any such indemnified person, or to
contribute to the Losses of any such indemnified person, as the case may be, to
the extent of such unavailability or insufficiency.
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to
28
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter, the Company or the Parent. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement and no action
taken under this paragraph shall relieve any defaulting Underwriter of its
liability, if any, to the Company, the Parent and any nondefaulting Underwriter
for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's common stock shall have been suspended by the
Commission or trading in securities generally on the New York Stock Exchange or
the Nasdaq National Market shall have been suspended or limited or minimum
prices shall have been established on such Exchange or the Nasdaq National
Market, (ii) a banking moratorium shall have been declared either by Federal or
New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers, of the Subsidiary Guarantors or their officers, of the Parent and
of the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter, the Company, the Parent or any of the officers, directors,
employees, agents or controlling persons referred to in Section 7(a) hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7, 7(a) and 14 hereof shall survive the termination or cancellation of
this Agreement.
12. Notices. All communications hereunder will be in writing and effective
-------
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax no.: (212)
000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney Inc., at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; or,
if sent to the Company or the Subsidiary Guarantors, will be mailed, delivered
or telefaxed to Xxxxxxx X. Xxxxxxx, President and Chief Executive Officer,
Constar International Inc., Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000, fax (215)
000-0000 and confirmed to Xxxxxxx X. Lawlor, Dechert, 4000 Xxxx Atlantic Tower,
0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, fax (000) 000-0000; or if sent to the
Parent, will be mailed, delivered, telefaxed and confirmed to Xxxxxxx X.
Xxxxxxx, Crown, Cork & Seal Company, Inc., Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX
00000, fax (000) 000-0000 and confirmed to Xxxxxxx X. Lawlor, Dechert, 4000 Xxxx
Atlantic Tower, 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, fax (000) 000-0000.
29
13. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 7(a)
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more counterparts,
------------
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
--------
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
-----------
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Material Adverse Effect" shall mean any material adverse effect on
the condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto).
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(i)(a) hereof and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
30
"Prospectus" shall mean the prospectus relating to the Securities that is
first filed pursuant to Rule 424(b) after the Execution Time or, if no filing
pursuant to Rule 424(b) is required, shall mean the form of final prospectus
relating to the Securities included in the Registration Statement at the
Effective Date.
"Registration Statement" shall mean the registration statement referred to
in Section 1(i)(a) hereof, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective), and, in the event any post-
effective amendment thereto or any Rule 462(b) Registration Statement becomes
effective prior to the Closing Date, shall also mean such registration statement
as so amended or such Rule 462(b) Registration Statement, as the case may be.
Such term shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(i)(a)
hereof.
"Subsidiary" shall mean the subsidiaries of the Company listed in Annex A
hereto.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
31
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
Constar International Inc.
By:/s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Executive Vice
President, Chief
Financial Officer and
Secretary
Crown Cork & Seal Company, Inc.
By:/s/ Xxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice
President and Chief
Financial Officer
Attest:
[Corporate Seal]
----------------
By:/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
Constar Inc.
By:/s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Vice President and
Chief Financial
Officer
BFF Inc.
By:/s/ Xxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Financial
Officer
DT, Inc.
By:/s/ Xxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Financial
Officer
Constar Plastics, LLC
By:/s/ Xxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Financial
Officer
32
Constar Foreign Holdings, Inc.
By:/s/ Xxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Financial
Officer
33
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement
34
SCHEDULE I
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
Xxxxxxx Xxxxx Barney Inc. $ 89,250,000
Deutsche Bank Securities Inc. 40,250,000
X.X. Xxxxxx Securities Inc. 35,000,000
SunTrust Capital Markets, Inc. 7,000,000
Lazard Freres & Co. LLC 3,500,000
------------
Total $175,000,000
============
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ANNEX A: SUBSIDIARIES
Entity Jurisdiction of Incorporation
------ -----------------------------
Constar, Inc. ............................................Pennsylvania
Constar Foreign Holdings, Inc ............................Delaware
Constar International Holland (Plastics) BV ..............The Netherlands
Constar International UK Ltd. ............................England
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