Exhibit 1.1
Constar International Inc.
__ Shares*
Common Stock
$0.01 par value
Underwriting Agreement
New York, New York
November __, 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:
Crown Cork & Seal Company, Inc., a corporation organized under the laws of
the Commonwealth of Pennsylvania (the "Selling Securityholder"), proposes to
sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 12,000,000 shares of common stock, $0.01 par value ("Common
Stock"), of Constar International Inc., a corporation organized under the laws
of Delaware (the "Company") (such shares of Common Stock being sold by the
Selling Securityholder pursuant to this agreement are hereinafter called the
"Underwritten Securities"). The Company proposes to grant to the Underwriters an
option to purchase up to 1,800,000 additional shares of Common Stock to cover
over-allotments (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities").
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
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* Plus an option to purchase from the Company up to 1,800,000 additional shares
to cover over-allotments.
terms Representatives and Underwriters shall mean either the singular or plural
as the context 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 the Company is offering to sell $200,000,000 million of its __%
senior subordinated notes due 2012 pursuant to a prospectus dated ___, 2002 (the
"Senior Subordinated Notes Offering").
As part of the offering contemplated by this Agreement,
Xxxxxxx Xxxxx Xxxxxx Inc. agrees to reserve out of the Underwritten Securities
set forth opposite its name on Schedule I to this Agreement, up to 480,000
shares, for sale to certain employees, directors and other persons designated by
the Company in amounts designated by the Company (collectively, "Participants"),
as set forth in the Prospectus under the heading "Underwriting" (the "Directed
Share Program"). The Securities to be sold by Xxxxxxx Xxxxx Barney Inc. pursuant
to the Directed Share Program (the "Directed Shares") will be sold by Xxxxxxx
Xxxxx Xxxxxx Inc. pursuant to this Agreement at the public offering price. Any
Directed Shares not orally confirmed for purchase by any Participants by the
open of business on the business day after which this Agreement is executed will
be offered to the public by Xxxxxxx Xxxxx Barney Inc. as set forth in the
Prospectus.
1. Representations and Warranties.
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(i) The Company represents and warrants to, and agrees with,
each Underwriter as set forth below in this Section 1(i).
(a) The Company has 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 may have filed one or more
amendments thereto, including a related preliminary prospectus, each of
which has previously been furnished to you. The Company 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 has 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 has advised
you, prior to the Execution Time, will be included or made therein.
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(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) and on any
date on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the 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 or necessary in order to make
the statements therein not misleading; 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 makes no representations or warranties
--------- --------
as to 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 and its Subsidiaries 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 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
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 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, and except for the lien on the capital stock of
the Subsidiaries under the Amended and Restated Credit Agreement, dated
February 4, 2002, among the Selling Securityholder, 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
on the Closing Date.
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(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 description thereof contained in the Prospectus; the
outstanding shares of Common Stock (including the Underwritten Securities
being sold hereunder by the Selling Securityholder) have been duly and
validly authorized and issued, are fully paid and nonassessable and, except
as set forth in the Prospectus, are free of any preemptive or other rights
to subscribe for the Securities; the Option Securities to be issued and
sold by the Company if the Underwriters exercise their over-allotment
option have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof,
will be validly issued, fully paid and nonassessable and, except as set
forth in the Prospectus, free of any preemptive or other rights to
subscribe for the Securities; the Underwritten Securities being sold by the
Selling Securityholder are duly listed, admitted and authorized for
quotation on the Nasdaq National Market (the "Nasdaq") and the Option
Securities to be issued and sold by the Company if the Underwriters
exercise their over-allotment option, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof,
will be listed, admitted and authorized for quotation on the Nasdaq; the
certificates for the Securities comply with the requirements of the General
Corporation Law of the State of Delaware and the requirements of the
Nasdaq; 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 Tax Consequences to Non-U.S. Holders of Common Stock," "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
the Company and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms.
(h) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated herein, except such as 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 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
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on the sale of the Securities or the consummation of any of the other
transactions contemplated herein.
(j) None of the sale of the Underwritten Securities by the Selling
Securityholder, the issuance and sale of the Option Securities by the
Company if the Underwriters exercise their over-allotment option or 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 or any Subsidiary pursuant to (i) the
charter, by-laws or other similar organizational document of the Company or
any of its Subsidiaries, (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 or any
Subsidiaries 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 or any of its Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any Subsidiaries 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 sale of the Underwritten
Securities by the Selling Securityholder, the issuance and sale of the
Option Securities by the Company if the Underwriters exercise their
over-allotment option or the consummation of any of the other transactions
contemplated herein.
(k) Before giving effect to the offering and sale of the Underwritten
Securities, the Selling Securityholder owns all of the outstanding stock of
the Company.
(l) 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 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.
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(m) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries 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.
(n) 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.
(o) 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.
(p) 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.
(q) There are no non-rebatable 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.
(r) 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.
(s) 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.
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(t) 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.
(u) 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.
(v) 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.
(w) The Company and each Subsidiary 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.
(x) 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.
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(y) 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.
(z) 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.
(aa) 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
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.
(bb) 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").
(cc) 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
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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.
(dd) 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.
(ee) The Company has not offered, or caused the Underwriters to offer,
Securities to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business
with the Company, or (ii) a trade journalist or publication to write or
publish favorable information about the Company or its products.
Any certificate signed by any officer of the Company 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,
as to matters covered thereby, to each Underwriter.
Furthermore, the Company represents and warrants to Xxxxxxx Xxxxx Barney Inc.
that (i) the Registration Statement, the
9
Prospectus and any preliminary prospectus comply, and any further amendments or
supplements thereto will comply, with any applicable laws or regulations of
the United Kingdom, and that (ii) no authorization, approval, consent, license,
order, registration or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is necessary
under the securities laws and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
(ii) The Selling Securityholder represents and warrants to,
and agrees with, each Underwriter that:
(a) The Selling Securityholder is the record and beneficial owner of
the Securities to be sold by the Selling Securityholder hereunder free and
clear of all liens, encumbrances, equities and claims, except for the lien
on the Common Stock under the Crown Credit Agreement, which lien will be
released with respect to the Common Stock on the Closing Date, and has duly
endorsed such Securities in blank, and, assuming that each Underwriter
acquires its interest in the Securities it has purchased from the Selling
Securityholder without notice of any adverse claim (within the meaning of
Section 8-105 of the New York Uniform Commercial Code (the "UCC")), each
Underwriter that has purchased such Underwritten Securities delivered on
the Closing Date to The Depository Trust Company or other securities
intermediary by making payment therefor as provided herein, and that has
had such Securities credited by book entry to the securities account or
accounts of such Underwriter maintained with The Depository Trust Company
or such other securities intermediary, will have acquired a security
entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such
Underwritten Securities purchased by such Underwriter, and no action based
on an adverse claim (within the meaning of Section 8-105 of the UCC) may be
successfully asserted against such Underwriter with respect to such
Securities.
(b) The Selling Securityholder 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 Selling Securityholder, 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).
(c) This Agreement has been duly authorized, executed and delivered by
the Selling Securityholder and constitutes a valid and binding obligation
of the Selling Securityholder enforceable in accordance with its terms.
(d) The Selling Securityholder 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
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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.
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Selling
Securityholder 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 sale of the Securities or the consummation of any of the other
transactions contemplated herein.
(f) Except as set forth in the Prospectus, neither the sale of the
Securities being sold hereunder by the Selling Securityholder nor the
consummation of any other of the transactions contemplated herein by the
Selling Securityholder or the fulfillment of the terms hereof by the
Selling Securityholder will conflict with, result in a breach or violation
of, or constitute a default under (i) any law, (ii) the charter or by-laws
of the Selling Securityholder, (iii) the terms of any indenture or other
agreement or instrument to which the Selling Securityholder or any of its
subsidiaries is a party or bound, or (iv) any judgment, order or decree
applicable to the Selling Securityholder or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Selling Securityholder or any of
its subsidiaries, 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 sale of the Securities or the consummation of any of
the other transactions contemplated herein.
(g) The Selling Securityholder 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 Selling Securityholder
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.
(h) 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 Selling
Securityholder furnished in writing to the Company by the Selling
Securityholder specifically for use in connection with the preparation
thereof, the Selling Securityholder hereby makes the same representations
and warranties to each Underwriter as the Company makes to such Underwriter
under paragraph (i)(b) of this Section.
(i) The Selling Securityholder has not offered, or caused the
Underwriters to offer, Securities to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or supplier's
level or type of business with the Company, or (ii) a trade journalist or
publication to write or publish favorable information about the Company or
its products.
Any certificate signed by any officer of the Selling Securityholder 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 Selling Securityholder, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties set forth herein, the Selling
Securityholder agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Selling Securityholder, at a
purchase price of $__.__ per share, the number of shares of the Underwritten
Securities set forth opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
1,800,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time on or before the 30th day after the date of the Prospectus upon
written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
shares of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number
11
of shares of the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
--------------------
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 AM, New York City time, on [Closing
Date], 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 Selling Securityholder 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 Underwritten 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 Underwritten Securities to or upon the order of the Selling
Securityholder by wire transfer payable in same-day funds to the account
specified by the Selling Securityholder; if the option provided for in Section
2(b) hereof shall have been exercised on or before the third Business Day prior
to the Closing Date, delivery of the Option 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 Option 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 Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
The Selling Securityholder will pay all applicable state transfer
taxes, if any, involved in the transfer to the several Underwriters of the
Underwritten Securities to be purchased by them from the Selling Securityholder
and the respective Underwriters will pay any additional stock transfer taxes
involved in further transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to the account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
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.
----------
12
(i) The Company agrees with the several Underwriters that:
(a) The Company 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, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you 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),
the Company 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. The Company 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. The Company 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, the Company 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
and its Subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
13
(d) The Company 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 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 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) The Company 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, including the filing (or participation in
the filing) of a registration statement with the Commission in respect of,
or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Exchange
Act with respect to, any shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, shares of Common
Stock, or publicly announce an intention to effect any such transaction,
for a period of 180 days after the date of this Agreement, provided,
---------
however, that (1) the Company may issue, sell and register Common Stock
--------
pursuant to any employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the Execution Time,
(2) the Company may issue Common Stock issuable upon the conversion of
securities or the exercise of warrants outstanding at the Execution Time,
and (3) the Company may issue Common Stock in connection with any merger,
consolidation or stock or asset acquisition, so long as the recipients of
the Common Stock in such transaction agree to be bound by the same lock-up
restrictions as the Company.
(g) The Company 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.
(h) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required
by the National Association
14
of Securities Dealers, Inc. (the "NASD") or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement.
Xxxxxxx Xxxxx Barney Inc. will notify the Company as to which Participants
will need to be so restricted. The Company will direct the removal of such
transfer restrictions upon the expiration of such period of time.
(i) The Company will pay all reasonable fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed Share
Program (including the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of
such copies of the Directed Share Program materials) and stamp duties,
similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants with Xxxxxxx Xxxxx Xxxxxx Inc. that the
Company will comply with all applicable securities and other applicable laws,
rules and regulations in each foreign jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program.
(ii) The Selling Securityholder agrees with the several Underwriters
that:
(a) The Selling Securityholder 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 Selling
Securityholder or any affiliate of the Selling Securityholder or any person
with whom the Selling Securityholder or any affiliate of the Selling
Securityholder has an agreement with respect to securities of the Company),
directly or indirectly, or file (or participate in the filing of) a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act
with respect to, any shares of capital stock of the Company (other than the
Securities) or any securities convertible into, or exercisable or
exchangeable for, such capital stock, or publicly announce an intention to
effect any such transaction, for a period of 180 days after the date of
this Agreement, other than any shares of Common Stock disposed of as bona
fide gifts approved by Xxxxxxx Xxxxx Xxxxxx Inc.
(b) The Selling Securityholder 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.
(c) The Selling Securityholder will advise the Representatives
promptly, and if requested by the Representatives, will confirm such advice
in writing, until the Closing Date, of any material change in the Company's
condition (financial or otherwise), earnings, business or properties
15
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 Selling
Securityholder and 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 Selling Securityholder.
(d) The Selling Securityholder 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 delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the 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 and the
Selling Securityholder's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company and the Selling
Securityholder; and (10) all other costs and expenses incident to the
performance by the Company and the Selling Securityholder 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 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;
16
(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 Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Securityholder 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 and the Selling Securityholder made in any
certificates pursuant to the provisions hereof, to the performance by the
Company and the Selling Securityholder 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, 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 Constar Inc., a corporation organized
under the laws of the Commonwealth of Pennsylvania, 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;
(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
17
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; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectus; the Underwritten Securities being sold hereunder by the
Selling Securityholder have been duly and validly authorized and
issued, are fully paid and nonassessable; the Option Securities to be
issued and sold by the Company if the Underwriters exercise their
over-allotment option have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable; the Underwritten Securities being sold by the Selling
Securityholder are duly listed, admitted and authorized for quotation
on the Nasdaq and the Option Securities to be issued and sold by the
Company if the Underwriters exercise their over-allotment option and
the Option Securities are delivered on the Closing Date, when issued
and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will be listed, admitted and
authorized for quotation on the Nasdaq; the form of certificate used
to evidence the Common Stock complies with the requirements of the
General Corporation Law of the State of Delaware and the requirements
of the Nasdaq National Market; except as set forth in the Prospectus,
the holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to subscribe for the
Securities; except as set forth in the Prospectus, to the knowledge of
such counsel based on a review of the corporate records of the
Company, the charter and by-laws of the Company and an officers'
certificate delivered to such counsel by officials of the Company, 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;
(iv) the statements included in the Prospectus under the heading
"Material United States Tax Consequences to Non-U.S. Holders of Common
Stock," 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;
(v) 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;
18
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not and, after giving effect to the offering
and sale of the Securities (including the Company's concurrent
offering of its __% Senior Subordinated Notes due 2012 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;
(viii) 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 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, (3) such other approvals (specified
in such opinion) as have been obtained and (4) where the failure to
obtain such consent, approval, authorization, filing or order would
not have a material adverse effect on the sale of the Securities or
the consummation of any of the other transactions contemplated herein;
(ix) none of the sale of the Underwritten Securities by the
Selling Securityholder, the issuance and sale of the Option Securities
by the Company if the Underwriters exercise their over-allotment
option and the Option Securities are delivered on the Closing Date or
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 Constar Inc., (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 Company or its Subsidiaries 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 or any Subsidiary 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 or the Subsidiaries, or any
judgment, order or decree known to such counsel after due inquiry to
be applicable to the Company or the Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or the
Subsidiaries 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
19
(x) 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 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 rules and
regulations thereunder and (ii) such counsel participated in conferences
with officers and representatives of the Company, PricewaterhouseCoopers
LLP, the Underwriters, the Selling Securityholder 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)(iv) 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 Selling Securityholder 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.
20
(c) The Selling Securityholder shall have requested and caused
Dechert, counsel for the Selling Securityholder, 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 Selling Securityholder;
(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 Selling Securityholder 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 sale of the Securities or the
consummation of any of the other transactions contemplated herein; and
(iii) neither the sale of the Securities being sold hereunder by
the Selling Securityholder nor the consummation of any other of the
transactions contemplated herein by the Selling Securityholder nor the
fulfillment of the terms hereof by the Selling Securityholder will (1)
conflict with or result in a breach or violation of the charter or
by-laws of the Selling Securityholder, (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 Selling Securityholder
pursuant to the terms of 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 Selling Securityholder 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
Selling Securityholder, or any judgment, order or decree known to such
counsel after due inquiry to be applicable to the Selling
Securityholder of any court, regulatory body, administrative agency,
governmental body, or arbitrator or other authority having
jurisdiction over the Selling Securityholder 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
00
Xxxxxxx xxxx xx xxx Xxxxxx Xxxxxx, 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 Selling
Securityholder and public officials.
(d) The Company shall have requested and caused Xxxxxxxx Xxxxxxxx,
special counsel for the Company and the Selling Securityholder, 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 Selling
Securityholder, 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 Constar Inc. 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;
(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 Selling Securityholder, the Company or Constar
Inc. 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) none of the sale of the Underwritten Securities by the
Selling Securityholder, the issuance and sale of the Option Securities
by the Company if the Underwriters exercise their over-allotment
option and the Option Securities are delivered on the Closing Date or
the consummation of any other of the transactions contemplated herein
nor the fulfillment of the terms hereof will (1)
22
conflict with or result in a breach or violation of the charter of
by-laws of the Selling Securityholder, the Company or Constar Inc.,
(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 Selling Securityholder, the Company or Constar Inc. pursuant
to the terms of any material indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Selling
Securityholder, the Company or any Subsidiary 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 Selling
Securityholder, the Company or the Subsidiaries, or any judgment or
order applicable to the Selling Securityholder, the Company or the
Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Selling Securityholder, the Company or the Subsidiaries 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
Selling Securityholder, the Company or any Subsidiary 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
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 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
23
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 sale of the Securities, the Registration Statement, the Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company and the Selling
Securityholder 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 shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President, and the principal financial or accounting officer of the
Company, 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 Company 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 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 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 Selling Securityholder 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 Selling
Securityholder, 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 Selling
Securityholder in this
24
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, at the Execution Time and at
the Closing Date, letters, dated respectively as of the Execution Time and
as of the Closing Date and addressed to the Representatives, substantially
in the form of Exhibit B.
(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 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) At the Execution Time, the Company shall have furnished to the
Representatives a letter addressed to the Representatives substantially in
the form of Exhibit A hereto from each officer and director of the Company,
which persons are listed on Schedule II hereto, and all participants in the
Directed Share Program.
(l) The Securities shall have been listed and admitted and authorized
for quotation on the Nasdaq National Market, and satisfactory evidence of
such actions shall have been provided to the Representatives.
(m) 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) completed the
Senior Subordinated Notes Offering, (iii) obtained $150 million of term
loans, as described in the Prospectus, and (iv) entered into a revolving
credit facility of at least $75 million, as described in the Prospectus.
25
(n) The Selling Securityholder 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 Selling
Securityholder 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 and
the Selling Securityholder 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 [Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 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 or the Selling
Securityholder to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Selling
Securityholder 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
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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
26
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) The Company agrees to indemnify and hold harmless Xxxxxxx
Xxxxx Xxxxxx Inc., the directors, officers, employees and agents of Xxxxxxx
Xxxxx Barney Inc. and each person, who controls Xxxxxxx Xxxxx Xxxxxx Inc. within
the meaning of either the Act or the Exchange Act ("Xxxxxxx Xxxxx Barney Inc.
Entities"), from and against any and all losses, claims, damages and liabilities
to which they may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim), insofar
as such losses, claims damages, liabilities or expenses (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the prospectus wrapper material
prepared by or with the consent of the Company for distribution in foreign
jurisdictions in connection with the Directed Share Program attached to the
Prospectus or any preliminary prospectus, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement therein, when considered in
conjunction with the Prospectus or any applicable preliminary prospectus, not
misleading; (ii) are caused by the failure of any Participant to pay for and
accept delivery of the Directed Shares allocated by the Company to such
Participant if such Participant previously submitted an indication of interest
to Xxxxxxx Xxxxx Xxxxxx Inc., as agent for the Company; or (iii) relate to,
arise out of, or occur in connection with the Directed Share Program, provided
that, in the case of clause (i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon 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 Xxxxxxx Xxxxx Barney
Inc. specifically for inclusion therein and that in the case of clause (iii) the
Company will not be liable to the extent that such loss, claim, damage or
liability results from the gross negligence or willful misconduct of Xxxxxxx
Xxxxx Xxxxxx Inc.
(c) 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
27
Exchange Act, to the same extent as the indemnity to each Underwriter set forth
in paragraph (a) of this Section 8, 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
may otherwise have. The Company acknowledges 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.
(d) 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), (b) or (c) 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), (b) or (c) 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
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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
28
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 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. Notwithstanding anything contained herein to the
contrary, if indemnity may be sought pursuant to paragraph (b) of this Section 8
in respect of such action or proceeding, then in addition to such separate firm
for the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to
any local counsel) for Xxxxxxx Xxxxx Xxxxxx Inc., the directors, officers,
employees and agents of Xxxxxxx Xxxxx Barney Inc., and all persons, if any, who
control Xxxxxxx Xxxxx Xxxxxx Inc. within the meaning of either the Act or the
Exchange Act for the defense of any losses, claims, damages or liabilities
arising out of the Directed Share Program.
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) 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
29
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 (e), 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
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 (e).
(f) The liability of the Selling Securityholder under the Selling
Securityholder'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 by the Selling Securityholder to the Underwriters, after
deducting discounts and commissions received by the Underwriters. The Company
and the Selling Securityholder 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.
(g) 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.
(h) In the event that the indemnity and contribution provided in
paragraph (a), (b), (e) or (g) 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 Selling Securityholder 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
30
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 (at
the price per share set forth in Section 2(a) and in the respective proportions
which the amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate 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 amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate 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 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 Selling Securityholder
or the Company. 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 Selling Securityholder
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 the Nasdaq National Market 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 Selling Securityholder 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 Selling Securityholder or the Company or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7, 8 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.: (000) 000-0000) and confirmed to the
31
General Counsel, Xxxxxxx Xxxxx Barney Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel; or, if sent to the Company, 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 (000) 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 Selling Securityholder, will be mailed, delivered or 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.
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 8 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.
32
"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.
"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.
33
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 Selling Securityholder, the Company and the several Underwriters.
Very truly yours,
Constar International Inc.
By: ......................
Name:
Title:
Crown Cork & Seal Company, Inc.
By: ......................
Name:
Title:
By: ......................
Name:
Title:
34
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
[Name[s] of comanager[s]]
By: Xxxxxxx Xxxxx Barney Inc.
By:
..................
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement
35
SCHEDULE I
Number of
Underwriters Underwritten Securities to be Purchased
------------ ---------------------------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
-----------------
Total
=================
36
SCHEDULE II
-----------
[listing of officers and directors referred to in 6(k)]
37
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
38
EXHIBIT A
[Form of Lock-Up Agreement]
[Letterhead of each officer or director of
Constar International Inc. or any participant in the Directed Share Program]
Constar International Inc.
Public Offering of Common Stock
________, ___2
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:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), among Constar
International Inc., a Delaware corporation (the "Company"), Crown Cork & Seal
Company, Inc, a Pennsylvania corporation and each of you as representatives of a
group of Underwriters named therein, relating to an underwritten public offering
of Common Stock, [$_.__][without] par value, of the Company.
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned will not, without the prior
written consent of [for officers and directors of Constar International, Inc.:
Xxxxxxx Xxxxx Xxxxxx Inc. and Deutsche Bank Securities Inc.] [for participants
in the Directed Share Program: Xxxxxxx Xxxxx Barney 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 undersigned or any affiliate of the undersigned
or any person in privity with the undersigned or any affiliate of the
undersigned), directly or indirectly, including the filing (or participation in
the filing) of a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent
1
position within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder with respect to, any shares of capital stock
of the Company or any securities convertible into, or exercisable or
exchangeable for, such capital stock, or publicly announce an intention to
effect any such transaction, for a period of [for officers and directors of
Constar International, Inc.: 180 days] [for participants in the Directed Share
Program: 30 days] after the date of the Underwriting Agreement, other than any
such securities disposed of as bona fide gifts approved by Xxxxxxx Xxxxx Xxxxxx
Inc.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
By: ................
Name:
Title:
2