Exhibit 1.1
KOPPERS INDUSTRIES, INC.
$175,000,000 9-7/8% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
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November 20, 1997
SBC WARBURG DILLON READ INC.
as Initial Purchaser
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Koppers Industries, Inc. (the "Company"), a Pennsylvania corporation,
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proposes to issue and sell to SBC Warburg Dillon Read Inc. (the "Initial
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Purchaser") $175,000,000 aggregate principal amount of its 9-7/8% Senior
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Subordinated Notes due 2007 (the "Notes"). The Notes will be issued pursuant to
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an indenture (the "Indenture"), to be dated the Closing Date (as defined below),
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by and among the Company, the guarantors listed on the signature pages hereto
(collectively, the "Subsidiary Guarantors") and PNC Bank, National Association,
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as trustee (the "Trustee"). The Company's obligations under the Notes and the
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Exchange Notes (as defined below) will be unconditionally guaranteed on a senior
subordinated basis by each of the Subsidiary Guarantors pursuant to each of
their guarantees (the "Subsidiary Guarantees"). All references herein to the
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Notes or the Exchange Notes include the related guarantees, unless the context
otherwise requires. Capitalized terms used but not otherwise defined herein
shall have the meanings given to such terms in the Indenture or the Offering
Memorandum (as defined below).
The Notes will be offered and sold to the Initial Purchaser pursuant to an
exemption from the registration requirements under the Securities Act of 1933,
as amended, and the rules and regulations thereunder (collectively, the "Act")
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(the "Offering"). The Company has prepared a preliminary offering memorandum,
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dated October 30, 1997 (the "Preliminary Offering Memorandum"), and a final
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offering memorandum, dated and available for distribution on the date hereof
(the "Offering Memorandum"), relating to the Company, the Subsidiary Guarantors
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and the Notes.
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The Initial Purchaser has advised the Company that the Initial Purchaser
intends, as soon as it deems advisable after this Purchase Agreement has been
executed and delivered, to resell (the "Exempt Resales") the Notes purchased by
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the Initial Purchaser under this Purchase Agreement (this "Agreement") in
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private sales exempt from registration under the Act on the terms set forth in
the Offering Memorandum, as amended or supplemented, solely to (i) persons whom
the Initial Purchaser reasonably believes to be "qualified institutional
buyers," as defined in Rule 144A under the Act ("QIBs"), in compliance with Rule
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144A and (ii) other eligible purchasers pursuant to offers and sales that occur
outside the U.S. within the meaning of Regulation S under the Act; the persons
specified in clauses (i)-(ii) are sometimes collectively referred to herein as
the "Eligible Purchasers."
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Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, substantially in
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the form of Exhibit A to this Agreement, for so long as such Notes constitute
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"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company and the
Subsidiary Guarantors will agree to (A) file with the Securities and Exchange
Commission (the "Commission"), under the circumstances set forth in the
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Registration Rights Agreement, (i) a registration statement under the Act (the
"Exchange Offer Registration Statement") relating to the Company's 9-7/8% Senior
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Subordinated Notes due 2007 to be offered in exchange (the "Exchange Notes") for
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the Notes (the "Exchange Offer") and/or (ii) a shelf registration statement
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pursuant to Rule 415 under the Act (the "Shelf Registration Statement" and,
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together with the Exchange Offer Registration Statement, the "Registration
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Statements") relating to the resale by certain holders of the Notes, and (B) use
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their best efforts to cause such Registration Statements to be declared
effective as soon as practicable. This Agreement, the Notes, the Exchange
Notes, the Indenture and the Registration Rights Agreement are hereinafter
sometimes referred to collectively as the "Operative Documents."
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Upon original issuance of the Notes and until such time as the same is no
longer required under the applicable requirements of the Act, the Notes shall
bear the legend provided in the Offering Memorandum.
The Notes are being offered in connection with certain transactions
including (i) the establishment pursuant to a new credit agreement (such
agreement, together with all documents
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executed in connection therewith, the "Credit Agreement") of a $135.0 million
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senior term loan facility and a $140.0 million senior revolving credit facility
($40.0 million and $20.0 million of which will be exclusively reserved for use
in connection with a term loan and a revolving credit facility, respectively, of
Koppers Australia Pty. Limited ("Koppers Australia")) (the "New Credit
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Facilities"); (ii) the acquisition of The Broken Hill Proprietary Company
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Limited's 50% interest in Koppers Australia (the "Koppers Australia
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Acquisition") pursuant to an Agreement for Sale of Shares, dated October 8,
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1997, by and among BHP Nominees No. 3 Pty. Ltd, The Broken Hill Proprietary
Company Limited, the Company, Koppers Australia, Continental Carbon Australia
Pty. Limited and KAP Investments, Inc. (together with all documents executed in
connection therewith, the "Koppers Australia Acquisition Documents"); (iii) an
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offer (the "Tender Offer") to purchase, pursuant to certain conditions, the
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Company's outstanding 8 1/2% Senior Notes due February 1, 2004 (the "8 1/2s");
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(iv) a related solicitation of consents pursuant to a consent solicitation (the
"Consent Solicitation") to modify certain terms of the indenture under which the
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8 1/2s were issued pursuant to a supplemental indenture (the "Supplemental
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Indenture"); (v) the repayment of outstanding indebtedness under the Company's
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existing term loan and revolving credit facilities (the "Repayment"); (vi) the
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redemption of 1,813,200 shares of non-voting Common Stock of the Company
("Common Stock") owned by APT Holdings Corporation, an affiliate of Mellon Bank,
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N.A., for $22.9 million (the "APT Redemption"); (vii) the redemption, at $17.00
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per share, of up to 25% of the shares of Common Stock owned by the current
officers of the Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (a member of the Board of
Directors) and the redemption of up to 100% of the shares of Common Stock owned
by any other Management Investor (as defined in the Offering Memorandum) within
sixty (60) days of the consummation of the Offering and upon compliance with any
applicable securities laws, at the election of such individuals, in an aggregate
amount not exceeding $15.0 million (the "Management Investor Redemption"); and
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(viii) the redemption of 436,508 non-voting shares of Common Stock from Saratoga
Koppers Funding, Inc. (the "Saratoga Koppers Redemption"). The Koppers
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Australia Acquisition, the Tender Offer, the Consent Solicitation (including the
execution of the Supplemental Indenture), the Repayment, the Saratoga Koppers
Redemption and the establishment of and initial funding under the New Credit
Facilities (including the execution and delivery of the Credit Agreement) are
referred to herein collectively as the "Recapitalization Transaction." The APT
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Redemption and the Management Investor Redemption are referred to herein
collectively as the "Other Transactions." The Offering, the Recapitalization
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Transaction and the Other Transactions are
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referred to herein collectively as the "Transactions." The Credit Agreement,
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the Koppers Australia Acquisition Documents and the Supplemental Indenture are
referred to herein collectively as the "Recapitalization Documents." Documents
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executed in connection with the Other Transactions are referred to herein
collectively as the "Other Documents." The Operative Documents, the
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Recapitalization Documents and the Other Documents are referred to herein
collectively as the "Transaction Documents."
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The net proceeds from the Offering, together with borrowings under the New
Credit Facilities, will be used by the Company to effect the Transactions and to
pay related fees and expenses.
The Company, each of the Subsidiary Guarantors, and the Initial Purchaser
agree as follows:
1. SALE AND PURCHASE. Upon the basis of the representations, warranties
and covenants contained in this Agreement, and subject to the other terms and
conditions herein set forth, the Company agrees to issue and sell to the Initial
Purchaser, and the Initial Purchaser agrees to purchase from the Company, the
aggregate principal amount of the Notes. The purchase price for the Notes shall
be 97.25% of their principal amount. The Company shall cause each Subsidiary
Guarantor to unconditionally guarantee on a senior subordinated basis by such
Subsidiary Guarantor the Company's obligations under the Notes and the Exchange
Notes.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Notes
shall be made to the Company by wire transfer of immediately available funds, to
an account of the Company designated by the Company at least two business days
prior to the payment date, against delivery of the certificates for the Notes
for the account of the Initial Purchaser. Delivery of, and payment of the
purchase price for, the Notes shall be made at 9:00 a.m., New York City time, on
the third business day following the date of this Agreement (the "Closing Date")
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at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. The Closing Date, and the location of delivery of, and the form of
payment for, the Notes may be varied by mutual agreement between the Initial
Purchaser and the Company.
One or more of the Notes in global form or certificated form, as the case
may be, registered in such names as the Initial Purchaser may request upon at
least one business day's notice prior to the Closing Date, having an aggregate
principal amount corresponding to the aggregate principal amount of the Notes
sold
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pursuant to Exempt Resales to QIBs, in the case of the Notes in global form, and
to other Eligible Purchasers, in the case of Notes in certificated form sold
pursuant to Regulation S, shall be delivered by the Company to the Initial
Purchaser (or as the Initial Purchaser directs), against payment by the Initial
Purchaser of the purchase price therefor by means of transfer of immediately
available funds (including book transfer) reasonably acceptable to the Initial
Purchaser and the Company to the order of the Company. The Notes in global form
shall be made available to the Initial Purchaser for inspection not later than
9:30 a.m. on the business day immediately preceding the Closing Date.
3. AGREEMENTS OF THE ISSUERS. The Company and the Subsidiary Guarantors
covenant and agree with the Initial Purchaser as follows:
(a) To furnish the Initial Purchaser and those persons identified by
the Initial Purchaser, without charge, with as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as the Initial Purchaser may reasonably
request for purposes contemplated by the Act. The Company consents to the
use of the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments and supplements thereto required pursuant to this Agreement,
by the Initial Purchaser in connection with Exempt Resales that are in
compliance with Section 4(B) of this Agreement.
(b) Not to amend or supplement the Offering Memorandum prior to the
Closing Date unless the Initial Purchaser shall previously have been
advised of, and shall not have objected to (any such objection not to be
unreasonable), such amendment or supplement within a reasonable time, but
in any event not longer than five days after being furnished with a copy of
such amendment or supplement. The Company shall promptly prepare, upon the
Initial Purchaser's reasonable request, any amendment or supplement to the
Offering Memorandum that may be necessary or advisable in connection with
Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be
delivered in connection with any Exempt Resales or market-making
transactions after the date of this Agreement and prior to the consummation
of the Exchange Offer, any event shall occur that, in the judgment of the
Company or any of the Subsidiary Guarantors or in the judgment of counsel
to the Initial Purchaser, makes any statement of a material fact in the
Offering Memorandum
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untrue or that requires the making of any additions to or changes in the
Offering Memorandum in order to make the statements in the Offering
Memorandum, in the light of the circumstances under which they are made,
not misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with all applicable laws, the Company and the
Subsidiary Guarantors shall promptly notify the Initial Purchaser of such
event and prepare an appropriate amendment or supplement to the Offering
Memorandum so that (i) the statements in the Offering Memorandum as amended
or supplemented will, in the light of the circumstances at the time that
the Offering Memorandum is delivered to prospective Eligible Purchasers,
not be misleading and (ii) the Offering Memorandum will comply with
applicable law.
(d) To furnish such information as may be required and otherwise to
cooperate with the Initial Purchaser and counsel to the Initial Purchaser
in qualifying the Notes and Exchange Notes for offering and sale under the
securities or Blue Sky laws of such jurisdictions as the Initial Purchaser
may request and to maintain such qualification in effect so long as
required for the Exempt Resales; provided that neither the Company nor any
Subsidiary Guarantor shall be required to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified or to file a general
consent to service of process in any such jurisdiction or subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject (except service of process with respect to
the offering and sale of the Notes and Exchange Notes); and to promptly
advise the Initial Purchaser of the receipt by the Company or any of the
Subsidiary Guarantors of any notification with respect to the suspension of
the qualification of the Notes or Exchange Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement becomes effective or is terminated, to pay
all costs, expenses, fees, disbursements (including fees, expenses and
disbursements of counsel) and stamp, documentary or similar taxes imposed
by the U.S. incident to and in connection with: (i) the preparation,
printing, filing and distribution of the Preliminary Offering Memorandum
and the Offering Memorandum (including, without limitation, financial
statements) and all amendments and supplements thereto, (ii) the
preparation and delivery of the Operative
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Documents and all other agreements, memoranda, correspondence and documents
prepared and delivered in connection with this Agreement and with the
Exempt Resales, (iii) the issuance, transfer and delivery by the Company
and the Subsidiary Guarantors of the Notes and the Subsidiary Guarantees,
respectively, to the Initial Purchaser, (iv) the qualification or
registration of the Notes for offer and sale under the securities or Blue
Sky laws of the several states (including, without limitation, the cost of
printing and mailing a preliminary and final Blue Sky memorandum and the
fees and disbursements of counsel to the Initial Purchaser relating
thereto), (v) the furnishing of such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and supplements
thereto, as may be reasonably requested for use in connection with Exempt
Resales, (vi) the preparation of certificates for the Notes and Exchange
Notes (including, without limitation, printing and engraving thereof),
(vii) the application for eligibility of the Notes for trading in the
Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") market of the National Association of Securities Dealers, Inc.
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("NASD"), including, but not limited to, all application fees and expenses,
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(viii) the approval of the Notes and Exchange Notes by The Depository Trust
Company ("DTC") for "book-entry" transfer, (ix) the rating of the Notes and
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Exchange Notes by rating agencies, (x) the fees and expenses of the Trustee
and its counsel and (xi) the performance by the Company and the Subsidiary
Guarantors of their other obligations under the Operative Documents,
including, but not limited to, the fees, disbursements and expenses of the
Company's counsel and accountants.
(f) To use the proceeds from the sale of the Notes in the manner
described in the Offering Memorandum under the caption "Use of Proceeds."
(g) To do and perform all things required to be done and performed
under this Agreement by it prior to or after the Closing Date and to
satisfy all conditions precedent on its part to the delivery of the Notes.
(h) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would be
integrated with the sale of the Notes in a manner that would require the
registration under the Act of the sale of the Notes to the Initial
Purchaser or any Eligible Purchasers.
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(i) From and after the Closing Date, for so long as any of the Notes remain
outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the Act and during any period in which the Company is not
subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), to make available the information required by
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Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of
Notes in connection with any sale of such Notes and (ii) any prospective
purchaser of such Notes from any such holder or beneficial owner designated
by the holder or beneficial owner.
(j) To comply with all of its agreements set forth in the Registration
Rights Agreement and all agreements set forth in the representations letter
of the Company to DTC relating to the approval of the Notes by DTC for
"book-entry" transfer.
(k) To use its best efforts to effect the eligibility of the Notes for
trading in the PORTAL market and to obtain approval of the Notes by DTC for
"book-entry" transfer.
(l) From and after the Closing Date, for so long as any of the Notes
remain outstanding, to deliver without charge to the Initial Purchaser,
promptly upon their becoming available, copies of (i) all reports and other
communications (financial or otherwise) that the Company shall mail or
otherwise make available to its security holders, (ii) all reports or
financial statements furnished to or filed by the Company and each of the
Subsidiary Guarantors with the Commission or any national securities
exchange and (iii) such other information as the Initial Purchaser may
reasonably request regarding the Company and its subsidiaries.
(m) Prior to the Closing Date, to furnish to the Initial Purchaser, as
soon as they have been prepared by the Company and the Subsidiary
Guarantors, a copy of any regularly prepared internal financial statements
of the Company and each of the Subsidiary Guarantors for any period
subsequent to the period covered by the financial statements appearing in
the Offering Memorandum and prior to the Closing Date.
(n) Not to distribute prior to the Closing Date any offering material
in connection with the offer and sale of
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the Notes other than the Preliminary Offering Memorandum and the Offering
Memorandum.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SUBSIDIARY
GUARANTORS. (A) The Company and each of the Subsidiary Guarantors represents
and warrants to the Initial Purchaser that:
(1) Each of the Preliminary Offering Memorandum and the Offering
Memorandum has been prepared in connection with the Exempt Resales.
Neither the Preliminary Offering Memorandum nor the Offering Memorandum, or
any supplement or amendment thereto, contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company and the
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Subsidiary Guarantors make no representation or warranty with respect to
information contained in or omitted from the Preliminary Offering
Memorandum or the Offering Memorandum, as supplemented or amended, in
reliance upon and in conformity with information relating to the Initial
Purchaser furnished to the Company by the Initial Purchaser expressly for
use in the Preliminary Offering Memorandum or the Offering Memorandum or
any supplement or amendment thereto. No order asserting that any of the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act has been issued or threatened.
(2) As of the date of this Agreement, the Company has the authorized,
issued and outstanding capitalization as set forth under the heading
entitled "Actual" in the section of the Offering Memorandum entitled
"Capitalization" and, as of the Closing Date, the Company shall have an
authorized capitalization as set forth under the heading entitled "As
Adjusted" in the section of the Offering Memorandum entitled
"Capitalization"; all of the outstanding capital stock of the Company has
been duly authorized and validly issued and is fully paid and nonassessable
and was not issued in violation of any preemptive or similar rights.
(3) Other than the C Class Shares of Koppers Australia, the Company
owns (other than with respect to Koppers Australia and its subsidiaries),
and as of the time of purchase will own (including with respect to Koppers
Australia and its subsidiaries), 100% of the outstanding capital stock and
other securities evidencing equity ownership of the Subsidiary Guarantors,
free and clear of
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any pledge, fiduciary transfer, security interest, claim, lien, limitation
on voting rights or encumbrance (other than, as of the Closing Date, the
liens imposed by the New Credit Facilities), and all such securities will
have been duly authorized and validly issued, fully paid and nonassessable
and will not have been issued in violation of, or subject to, any
preemptive or similar rights. There will not be any outstanding rights,
warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest of
any Subsidiary Guarantor.
(4) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its respective jurisdiction of incorporation and has all
requisite corporate power and authority to (a) carry on its business as it
is currently being conducted and as described in the Offering Memorandum
and (b) own, lease, license and operate its respective properties in
accordance with its business as currently conducted. The Company and each
of its subsidiaries is duly qualified and in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would not,
either individually or in the aggregate, result in a Material Adverse
Effect. A "Material Adverse Effect" means any material adverse effect on
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the business, condition (financial or other), properties, assets,
liabilities, results of operations or prospects of the Company and its
subsidiaries taken as a whole.
(5) The Company and each of the Subsidiary Guarantors has all
requisite corporate power and authority to execute, deliver and perform all
of its obligations under the Transaction Documents and to consummate the
Transactions contemplated by the Transaction Documents and, without
limitation, the Company has all requisite corporate power and authority to
issue, sell and deliver the Notes and each of the Subsidiary Guarantors has
all requisite corporate power and authority to execute, deliver and perform
all of its obligations under the Subsidiary Guarantees.
(6) This Agreement has been duly and validly authorized, executed and
delivered by the Company and each of the Subsidiary Guarantors.
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(7) The Indenture has been duly and validly authorized by the Company
and each of the Subsidiary Guarantors and, when duly executed and delivered
by the Company and each of the Subsidiary Guarantors, will be a legal,
valid and binding agreement of each of the Company and the Subsidiary
Guarantors, enforceable against each of them in accordance with its terms,
except that enforceability of the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity and the discretion of the court before which any proceedings
therefor may be brought. The Indenture, when executed and delivered, will
conform in all material respects to the description thereof in the Offering
Memorandum.
(8) The Notes have been duly and validly authorized for issuance and
sale to the Initial Purchaser by the Company and, when issued,
authenticated and delivered by the Company against payment by the Initial
Purchaser in accordance with the terms of this Agreement and the Indenture,
the Notes will be legal, valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, except that enforceability of the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and the discretion of the court before
which any proceedings therefor may be brought. The Notes, when issued,
authenticated and delivered, will conform in all material respects to the
description thereof in the Offering Memorandum.
(9) The Exchange Notes have been duly and validly authorized for
issuance by the Company and, when issued, authenticated and delivered by
the Company in accordance with the terms of the Exchange Offer and the
Indenture, the Exchange Notes will be legal, valid and binding obligations
of the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except that
enforceability of the Exchange Notes may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity and the discretion of the court before which any proceedings
therefor may be brought. The Exchange Notes, when issued, authenticated
and delivered, will conform in
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all material respects to the description thereof in the Offering
Memorandum.
(10) The Subsidiary Guarantees will be duly and validly authorized by
the Subsidiary Guarantors and, when the Notes and Exchange Notes are
executed and delivered in accordance with the terms of the Indenture and
the Registration Rights Agreement, will be legal, valid and binding
obligations of the Subsidiary Guarantors, enforceable against each of them
in accordance with their terms, except that enforceability of the
Subsidiary Guarantees may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be
brought. The Subsidiary Guarantees, when executed and delivered, will
conform in all material respects to the description thereof in the Offering
Memorandum.
(11) The Registration Rights Agreement has been duly and validly
authorized by the Company and each of the Subsidiary Guarantors and, when
duly executed and delivered by the Company and each of the Subsidiary
Guarantors, will be a legal, valid and binding agreement of the Company and
each of the Subsidiary Guarantors, enforceable against each of them in
accordance with its terms, except that (a) enforceability of the
Registration Rights Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be
brought and (b) any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy consid
erations. The Registration Rights Agreement will conform in all material
respects to the description thereof in the Offering Memorandum.
(12) None of the Company or its subsidiaries is (A) in violation of
its charter, bylaws or other organizational document or (B) in default (or,
with notice or lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note, indenture, mortgage, deed
of trust, loan agreement, lease, license, franchise agreement,
authorization, permit, certificate or other agreement or instrument to
which any of them is a party or by which any of them is bound or to which
any of
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their assets or properties is subject (collectively, "Agreements"), or (C)
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in violation of any law, statute, rule, regulation, judgment, order or
decree of any domestic or foreign court with jurisdiction over any of them
or any of their assets or properties or other governmental or regulatory
authority, agency or other body, that, in the case of clauses (B) and (C)
above, would, either individually or in the aggregate, result in a Material
Adverse Effect. There exists no condition that, with notice or lapse of
time or both, would constitute a default by the Company or any of its
subsidiaries under any such document or instrument or result in the
imposition of any penalty or the acceleration of any indebtedness, other
than penalties, defaults or conditions that would not, either individually
or in the aggregate, result in a Material Adverse Effect.
(13) Each of the Recapitalization Documents and the Other Documents
conforms in all material respects to the description thereof contained in
the Offering Memorandum.
(14) Each of the Recapitalization Documents and the Other Documents
have been duly and validly authorized, and when executed and delivered by
the Company and any subsidiary of the Company which may be a party thereto,
will constitute the legal, valid and binding obligations of the Company or
such subsidiary enforceable against the Company or such subsidiary in
accordance with their terms, except that enforceability of the
Recapitalization Documents and the Other Documents may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceedings therefor may be brought.
(15) The execution, delivery or performance by the Company and its
subsidiaries (as applicable) of this Agreement and each of the other
Transaction Documents to which they are a party does not or will not
violate, conflict with or constitute a breach of any of the terms or
provisions of, or a default under (or an event that with notice or the
lapse of time, or both, would constitute a default), or require consent
under (as of the Closing Date), or result in the creation or imposition of
a lien, charge or encumbrance on any property or assets of the Company or
any of its subsidiaries other than, as of the Closing Date, the liens
imposed by the New Credit Facilities, pursuant to, (i) the charter, bylaws
or other organizational documents of the
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Company or any of its subsidiaries, (ii) after giving effect to the Consent
Solicitation, any bond, debenture, note, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any of the
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (iii) any law, statute, rule
or regulation applicable to the Company or any of its subsidiaries or their
assets or properties or (iv) any judgment, order or decree of any domestic
or foreign court or governmental agency or authority having jurisdiction
over the Company or any of its subsidiaries or their assets or properties.
Assuming the accuracy of the representations and warranties of the Initial
Purchaser in Section 4(B) of this Agreement, no consent, approval,
authorization or order of, or filing, registration, qualification, license
or permit of or with, any court or governmental agency, body or
administrative agency, domestic or foreign, is required to be obtained or
made by the Company for the execution, delivery and performance of this
Agreement or any of the other Operative Documents, the execution, delivery
and performance of the other Transaction Documents or any of the
transactions contemplated thereby, except (i) such as have been or will be
obtained or made prior to Closing, (ii) registration of the Notes under the
Act pursuant to the Registration Rights Agreement or (iii) such as may be
required by the NASD. No consents or waivers from any other person or
entity are required for the execution, delivery and performance of this
Agreement or any of the other Operative Documents, the execution, delivery
and performance of the other Transaction Documents or any of the
transactions contemplated thereby, except such as have been or will be
obtained or made prior to closing.
(16) The representations and warranties of each of the Company and any
of its subsidiaries party thereto set forth in the Credit Agreement will be
true and correct as of the Closing Date (except to the extent that any such
representation or warranty was expressly made as of any other date, in
which case such representation and warranty was true and correct as of such
date).
(17) There is (i) except as set forth in the Offering Memorandum, no
action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending or,
to the knowledge of the Company or its subsidiaries, threatened or
contemplated, to
-15-
which the Company or any of its subsidiaries is or may be a party or to
which the business, assets or property of such person is or may be subject,
(ii) except as set forth in the Offering Memorandum, no statute, rule,
regulation or order that has been enacted, adopted or issued or, to the
knowledge of the Company or its subsidiaries, that has been proposed by any
governmental body or agency, domestic or foreign, (iii) no injunction,
restraining order or order of any nature by a federal or state court or
foreign court of competent jurisdiction to which the Company or any of its
subsidiaries is or may be subject that (x) in the case of clause (i) above,
if determined adversely to the Company or its subsidiaries, would be
reasonably likely to, either individually or in the aggregate, (1) result
in a Material Adverse Effect, or (2) interfere with or adversely affect the
issuance of the Notes or the Exchange Notes or the Subsidiary Guarantees in
any jurisdiction or adversely affect the consummation of the transactions
contemplated by any of the Transaction Documents, and (y) in the case of
clauses (ii) and (iii) above, would, either individually or in the
aggregate, (1) result in a Material Adverse Effect, or (2) interfere with
or adversely affect the issuance of the Notes or the Exchange Notes or the
Subsidiary Guarantees in any jurisdiction or adversely affect the
consummation of the transactions contemplated by any of the Transaction
Documents. Every request of any securities authority or agency of any
jurisdiction for additional information with respect to Notes or the
Exchange Notes that has been received by the Company, the Subsidiary
Guarantors or their counsel prior to the date hereof has been, or will
prior to the Closing Date be, complied with.
(18) No labor disturbance by the employees of the Company or any of
its subsidiaries exists or, to the actual knowledge of the Company or the
Subsidiary Guarantors, is imminent that might reasonably be expected to
result in a Material Adverse Effect; the Company and its subsidiaries are
in compliance in all respects with, as applicable and except where a
failure to so comply would not have a Material Adverse Effect, all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no unwaivable "reportable event" (as
-----
defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company or its subsidiaries would have any
liability; none of the Company or its subsidiaries has incurred or expects
to incur liability under (i) Title IV of
-16-
ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 412, 4971 or 4975 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" that is maintained or
----
contributed to by the Company or its subsidiaries that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or by failure to act, that would cause the loss
of such qualification.
(19) Except as set forth in the Offering Memorandum, the Company and
each of its subsidiaries (i) is in compliance with, and not subject to
costs or liabilities under, any and all local, state, provincial, federal
and foreign laws, regulations, rules of common law, orders and decrees, as
in effect as of the date hereof, and any presently effective judgments,
decrees, orders and injunctions issued or promulgated thereunder, in each
case, relating to pollution or protection of public and employee health and
safety and the environment applicable to it or its business or operations
or ownership or use of its property ("Environmental Laws"), other than such
------------------
noncompliance or costs or liabilities that would not, either individually
or in the aggregate, result in a Material Adverse Effect, and (ii)
possesses all permits, licenses or other approvals required under
applicable Environmental Laws and all such permits, licenses and other
approvals to expire within the next five years shall be renewed or
otherwise extended or reissued in due course, and no new permit
requirements shall become effective, in each case, other than such permits,
licenses or approvals the lack of which would not, either individually or
in the aggregate, result in a Material Adverse Effect. All currently
pending and, to their knowledge, threatened proceedings, notices of
violation, demands, notices of potential responsibility or liability, suits
and existing environmental conditions with respect to which the Company or
its subsidiaries could reasonably be expected to have any liability are
fully and accurately described in all material respects in the Offering
Memorandum except as would not, either individually or in the aggregate,
result in a Material Adverse Effect. Each of the Company and its
subsidiaries maintains a system of internal environmental management
controls sufficient to provide reasonable assurance that all material
sampling, analytical, recordkeeping and reporting requirements under
applicable Environmental Laws are implemented, executed and
-17-
maintained in accordance with the requirements of such Environmental Laws.
(20) The Company and each of its subsidiaries has (i) good and
marketable title to all of the properties and assets described in the
Offering Memorandum as owned by it and good and marketable title to the
leasehold estates in the real and personal property described in the
Offering Memorandum as leased by it, free and clear of all Liens (as
defined in the Indenture), except for Liens described in the Offering
Memorandum, Liens permitted under the Indenture and such Liens as would
not, either individually or in the aggregate, result in a Material Adverse
Effect, (ii) all licenses, certificates, permits, authorizations,
approvals, franchises and other rights from, and has made all declarations
and filings with, all federal, state, local and foreign authorities, all
self-regulatory authorities and all courts and other tribunals (each, an
"Authorization") to (a) carry on its business as it is currently being
--------------
conducted and as described in the Offering Memorandum and (b) own, lease,
license and operate its respective properties in accordance with its
business as currently conducted, and (iii) no reason to believe that any
governmental body or agency, domestic or foreign, is considering limiting,
suspending or revoking any such Authorization. Except where the failure to
be in full force and effect and in compliance would not, either
individually or in the aggregate, result in a Material Adverse Effect, all
such Authorizations are valid and in full force and effect and the Company
and each of its subsidiaries is in compliance with the terms and conditions
of all such Authorizations and with the rules and regulations of the
regulatory authorities having jurisdiction with respect to such
Authorizations. All leases to which the Company or any of its subsidiaries
is a party are valid and binding, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity and the discretion of the court before which
any proceedings therefor may be brought and no default has occurred and is
continuing thereunder, other than defaults that would not, either
individually or in the aggregate, result in a Material Adverse Effect.
(21) The Company and each of its subsidiaries owns, possesses or has
the right to employ all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
-18-
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively, the
"Intellectual Property") necessary to conduct the businesses operated by it
----------------------
as described in the Offering Memorandum. None of the Company or the
Subsidiary Guarantors has received any notice of infringement of or
conflict with (and neither knows of any such infringement or a conflict
with) asserted rights of others with respect to any of the foregoing that,
if such assertion of infringement or conflict were sustained, would result
in a Material Adverse Effect. The use of the Intellectual Property in
connection with the business and operations of the Company and its
subsidiaries does not infringe on the rights of any person.
(22) All tax returns required to be filed by the Company and each of
its subsidiaries have been filed in all jurisdictions where such returns
are required to be filed; and all taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due or claimed
to be due from such entities or that are due and payable have been paid,
other than those being contested in good faith and for which reserves have
been provided in accordance with generally accepted accounting principles
or those currently payable without penalty or interest. To the knowledge
of the Company and each of the Subsidiary Guarantors, there are no material
proposed additional tax assessments against any of them or their
subsidiaries or their assets or property.
(23) None of the Company or its subsidiaries is an "in vestment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
----------
Company Act"), or analogous foreign laws and regulations.
-----------
(24) Except with respect to the Notes or the Exchange Notes and except
with respect to Common Stock owned by Saratoga Partners III, L.P., there
are no holders of securities of the Company or any of its subsidiaries who
have the right to request or demand that the Company or any of its
subsidiaries register under the Act or analogous foreign laws and
regulations any of such securities held by any such holders.
(25) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that: (A) transactions are
-19-
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of its financial statements in conformity with United States
generally accepted accounting principles and to maintain accountability for
assets; (C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for its assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(26) The Company and each of its subsidiaries maintains insurance
covering its properties, assets, operations, personnel and businesses, and
such insurance is of such type and in such amounts in accordance with
customary industry practice to protect the Company and its subsidiaries and
their businesses. None of the Company or the Subsidiary Guarantors has
received notice from any insurer or agent of such insurer that any material
capital improvements or other material expenditures will have to be made in
order to continue any insurance maintained by any of them other than
capital improvements and other expenditures that have been budgeted by the
Company or its subsidiaries, as the case may be.
(27) None of the Company, the Subsidiary Guarantors or their
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
(A) taken, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or manipulation
of the price of any security of the Company or any of the Subsidiary
Guarantors to facilitate the sale or resale of the Notes or (B) since the
date of the Preliminary Offering Memorandum (x) sold, bid for, purchased or
paid any person any compensation for soliciting purchases of the Notes in a
manner that would require registration of the Notes under the Act or (y)
paid or agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company or any of the Subsidiary
Guarantors in a manner that would require registration of the Notes under
the Act.
(28) No registration under the Act of the Notes is re quired for the
sale of the Notes to the Initial Purchaser as contemplated by this
Agreement or for the Exempt Resales, assuming in each case that (A) the
purchasers who buy the Notes in the Exempt Resales are Eligible Purchasers
and (B) the accuracy of and compliance with the Initial
-20-
Purchaser's representations, warranties and covenants contained in Section
4(B) of this Agreement. No form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) was
used by the Company, any of the Subsidiary Guarantors or any of their
representatives in connection with the offer and sale of any of the Notes
or in connection with Exempt Resales, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine or similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(29) The execution and delivery of this Agreement, the other Operative
Documents and the sale of the Notes, the Exchange Notes, and Subsidiary
Guarantees to be purchased by the Eligible Purchasers will not involve any
prohibited transaction within the meaning of Section 406(a) of ERISA or
Section 4975(c)(1)(A)-(D) of the Code. The representation made by the
Company and each of the Subsidiary Guarantors in the preceding sentence is
made in reliance upon and subject to the accuracy of, and compliance with,
the representations and covenants made or deemed made by the Eligible
Purchasers as set forth in the Offering Memorandum under the caption
"Transfer Restrictions."
(30) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, and each amendment or supplement thereto, as of
its date, contains the information specified in, and meets the requirements
of, Rule 144A(d)(4) under the Act.
(31) Since the date as of which information is given in the Offering
Memorandum, except as otherwise expressly set forth therein, neither the
Company nor any of its subsidiaries had any material liabilities or
obligations, direct or contingent, that were not set forth in the Company's
consolidated balance sheet as of September 30, 1997, or in the notes
thereto. Since the date as of which information is given in the Offering
Memorandum and up to the Closing Date, except as otherwise expressly set
forth in the Offering Memorandum, (a) none of the Company or its
subsidiaries has (1) incurred any liabilities or obligations, direct or
contingent, that are not in the ordinary course of business that would,
either individually or in the aggregate, result in a Material Adverse
Effect or (2) entered into any material transaction not in the ordinary
course of business, (b) there has not been any
-21-
event or development in respect of the business, development or financial
condition of the Company or any of its subsidiaries that would, either
individually or in the aggregate, result in a Material Adverse Effect, (c)
there has been no dividend or distribution of any kind declared, paid, or
made by either the Company or any of its subsidiaries on any class of its
capital stock, and (d) there has not been any change in the long-term debt
of the Company and its subsidiaries.
(32) Neither the Company nor any of its subsidiaries (nor any agent
acting on behalf of the Company or any of the Subsidiary Guarantors) has
taken, and none of them will take, any action that might cause this
Agreement or the issuance or sale of the Notes or Exchange Notes to violate
Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of
the Board of Governors of the Federal Reserve System or analogous foreign
laws and regulations, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date.
(33) The accountants who have certified the financial statements
included as part of the Offering Memorandum are independent accountants
within the meaning of the Act. The historical financial statements of the
Company comply as to form in all material respects with the requirements
applicable to registration statements on Form S-1 under the Act and present
fairly in all material respects the consolidated financial position and
results of operations of the Company at the respective dates and for the
respective periods indicated. Such financial statements have been prepared
in accordance with United States generally accepted accounting principles
applied on a consistent basis throughout the periods presented (except as
disclosed in the Offering Memorandum) and comply as to form with the rules
and regulations promulgated under the Act. The historical financial
statements of Koppers Australia present fairly in all material respects the
consolidated financial position and results of operations of Koppers
Australia at the respective dates and for the respective periods indicated.
Such financial statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent
basis throughout the periods presented (except as disclosed in the Offering
Memorandum) and comply as to form with the rules and regulations
promulgated under the Act. The pro forma financial statements included in
--- -----
the Offering Memorandum (i) have been
-22-
prepared on a basis consistent with such historical statements, except for
the pro forma adjustments specified therein, (ii) include all material
--- -----
adjustments to the historical financial statements required by Rule 11-02
of Regulation S-X under the Exchange Act to reflect the transactions
described in the Offering Memorandum and (iii) give effect to assumptions
made on a reasonable basis and present fairly in all material respects the
historical and proposed transactions contemplated by the Offering
Memorandum, this Agreement, the Operative Documents and the other
Transaction Documents. All other financial and statistical information and
data included in the Offering Memorandum (including, but not limited to,
financial and statistical information contained in the Offering Memorandum
under the headings "Offering Memorandum Summary -- Summary Historical and
Pro Forma Consolidated Financial Information," "Capitalization," "Selected
Historical Consolidated Financial Information" and "Management's Discussion
and Analysis of Financial Condition and Results of Operations"), historical
and pro forma, are accurately presented in all material respects and
--- -----
prepared on a basis consistent with the financial statements and the books
and records of the Company and its subsidiaries.
(34) None of the Company or the Subsidiary Guarantors is or, upon
consummation of the Transactions, will be (A) "insolvent" as that term is
defined in Section 101(32) of the United States Bankruptcy Code (the
"Bankruptcy Code") (11 U.S.C. (S) 101(32)), Section 2 of the Uniform
----------------
Fraudulent Transfer Act ("UFTA") or Section 2 of the Uniform Fraudulent
----
Conveyance Act ("UFCA"), (B) an entity with "unreasonably small capital" as
----
that term is used in Section 548(a)(2)(ii) of the Bankruptcy Code or
Section 5 of the UFCA, (C) engaged or about to engage in a business or
transaction for which its remaining property is "unreasonably small" in
relation to the business or transaction as that term is used in Section 4
of the UFTA or (D) unable to pay its debts as they mature or become due,
within the meaning of Section 548(a)(2)(B)(iii) of the Bankruptcy Code,
Section 4 of the UFTA and Section 6 of the UFCA. The Company and each of
the Subsidiary Guarantors now owns and upon consummation of the
Transactions will own assets having a value both at "fair valuation" and at
"present fair saleable value" greater than the amount required to pay its
"debts" as such terms are used in Section 2 of the UFTA and Section 2 of
the UFCA.
(35) Koppers Australia is not insolvent (within the meaning of section
95A of the Australian Corporations Law)
-23-
as at the date of this Agreement and there are reasonable grounds to expect
that immediately following consummation of the transactions contemplated by
this Agreement, and each other Transaction Document to which Koppers
Australia is a party, Koppers Australia will not become insolvent.
(36) Except as described in the section entitled "Certain
Relationships and Related Transactions" in the Offering Memorandum, there
are no contracts, agreements or understandings between the Company or any
of the Subsidiary Guarantors and any other person other than the Initial
Purchaser that would give rise to a valid claim against the Company, the
Subsidiary Guarantors or the Initial Purchaser for a brokerage commission,
finder's fee or like payment in connection with the issuance, purchase and
sale of the Notes or Exchange Notes.
(37) The statistical and market-related data included in the Offering
Memorandum are based on or derived from sources that the Company and the
Subsidiary Guarantors believe to be reliable and accurate and represent the
Company's and the Subsidiary Guarantors' good faith estimates that are made
on the basis of data derived from such sources.
(38) No forward-looking statement (within the meaning of Section 27A
of the Act and Section 21E of the Exchange Act) contained in the Offering
Memorandum has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(39) There are no securities of the Company or any of the Subsidiary
Guarantors registered under the Exchange Act, or listed on a national
securities exchange or quoted in a U.S. automated interdealer quotation
system, other than the 8 1/2s.
(40) The Company shall cause Koppers Australia and each of the
Australian Subsidiary Guarantors to sign this Agreement on or before the
Closing Date.
(41) Each certificate signed by any officer of the Company or any of
the Subsidiary Guarantors and delivered to the Initial Purchaser or counsel
for the Initial Purchaser pursuant to, or in connection with, this
Agreement shall be deemed to be a representation and warranty by the
Company or such Subsidiary Guarantor to the Initial Purchaser as to the
matters covered by such certificate.
-24-
The Company and each of the Subsidiary Guarantors acknowledges that
the Initial Purchaser and, for purposes of the opinions to be delivered to the
Initial Purchaser pursuant to Section 7 of this Agreement, the various law firms
acting as counsel to the Company and each of the Subsidiary Guarantors and
counsel to the Initial Purchaser will rely upon the accuracy and truth of the
foregoing representations and the Company and each Subsidiary Guarantor hereby
consents to such reliance.
(B) The Initial Purchaser represents, warrants and covenants to the
Company that it is a QIB with such knowledge and experience in financial and
business matters as are necessary in order to evaluate the merits and risks of
an investment in the securities. The Initial Purchaser represents, warrants and
agrees with the Company that (i) it has not and will not solicit offers for, or
offer or sell, the Notes by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the Act
and (ii) it has and will solicit offers for the Notes only from, and will offer
the Notes only to, (x) persons whom the Initial Purchaser reasonably believes to
be QIBs or, if any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when such person has
represented to the Initial Purchaser that each such account is a QIB to whom
notice has been given that such sale or delivery is being made in reliance on
Rule 144A, and, in each case, in transactions under Rule 144A, or (y) persons
other than U.S. persons outside the U.S. in reliance on Regulation S.
The Initial Purchaser represents and warrants that the source of funds
being used by it to acquire the Notes does not include the assets of any
"employee benefit plan" (within the meaning of Section 3 of ERISA) or any "plan"
(within the meaning of Section 4975 of the Code).
The Initial Purchaser understands that the Company and, for purposes
of the opinion to be delivered to them pursuant to Section 7(f) hereof, counsel
to the Company will rely upon the accuracy and truth of the foregoing
representations, and the Initial Purchaser hereby consents to such reliance.
5. INDEMNIFICATION. (a) Each of the Company and the Subsidiary
Guarantors, on a joint and several basis, agrees to indemnify and hold harmless
the Initial Purchaser, each person, if any, who controls the Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
the agents, employees, officers and directors of the Initial
-25-
Purchaser and the agents, employees, officers and directors of any such
controlling person from and against any and all losses, liabilities, claims,
damages and expenses whatsoever (including but not limited to reasonable
attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all reasonable amounts paid in
settlement of any claim or litigation) to which they or any of them may become
subject under the Act, the Exchange Act or otherwise insofar as such losses,
liabilities, claims, damages or expenses (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 Preliminary Offering Memorandum or the Offering
Memorandum, or in any supplement thereto or amendment thereof, 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,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company and the Subsidiary Guarantors will not be
-------- -------
liable in any such case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information relating to the Initial Purchaser furnished to the Company by the
Initial Purchaser expressly for use therein. This indemnity agreement will be
in addition to any liability that each of the Company and the Subsidiary
Guarantors may otherwise have, including, but not limited to, liability under
this Agreement.
If any action is brought against the Initial Purchaser or any such
person in respect of which indemnity may be sought against the Company and the
Subsidiary Guarantors pursuant to the foregoing paragraph, the Initial Purchaser
or such person shall promptly notify the indemnifying party in writing of the
institution of such action and the indemnifying party shall assume the defense
of such action, including the employment of counsel reasonably satisfactory to
such indemnified party and payment of all fees and expenses, provided, however,
that the omission to so notify the indemnifying party shall not relieve the
indemnifying party from any liability which they may have to the Initial
Purchaser or any such person or otherwise. The Initial Purchaser shall have the
right to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the Initial Purchaser unless the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action
-26-
or the indemnifying party shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying party and
paid as incurred (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (together
with appropriate local counsel) in any one action or series of related actions
in the same jurisdiction representing the indemnified parties who are parties to
such action). The indemnifying party shall not be liable for any settlement of
any such claim or action effected without its written consent but if settled
with the written consent of the indemnifying party, the indemnifying party
agrees to indemnify and hold harmless the Initial Purchaser and any such person
from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company and the Subsidiary Guarantors, each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and each of its agents, employees, officers and directors and the
agents, employees, officers and directors of such controlling person from and
against any losses, liabilities, claims, damages and expenses
-27-
whatsoever (including but not limited to reasonable attorneys' fees and any and
all reasonable expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever and any and all reasonable amounts paid in settlement of any claim or
litigation) to which they or either of them may become subject under the Act,
the Exchange Act or otherwise insofar as such losses, liabilities, claims,
damages or expenses (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 Preliminary Offering Memorandum or the Offering Memorandum, 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, in the light
of the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that any such loss, liability, claim, damage
or expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information relating to the Initial Purchaser furnished
to the Company by the Initial Purchaser in writing expressly for use therein.
The Company and the Initial Purchaser acknowledge that the information set forth
in Section 8 is the only information furnished in writing by the Initial
Purchaser to the Company expressly for use in the Offering Memorandum.
If any action is brought against the Company or the Subsidiary
Guarantors or any such person in respect of which indemnity may be sought
against the Initial Purchaser pursuant to the foregoing paragraph, the Company,
the Subsidiary Guarantors or such person shall promptly notify the Initial
Purchaser in writing of the institution of such action and the Initial Purchaser
shall assume the defense of such action, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses, provided, however, that the omission to so notify the Initial
Purchaser shall not relieve the Initial Purchaser from any liability which they
may have to the Company, the Subsidiary Guarantors or any such person or
otherwise. The Company, the Subsidiary Guarantors or such person shall have the
right to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the Company or such person unless the
employment of such counsel shall have been authorized in writing by the Initial
Purchaser in connection with the defense of such action or the Initial Purchaser
shall not have employed counsel to have charge of the defense of such action or
such indemnified party or parties shall have reasonably concluded that there may
be
-28-
defenses available to it or them which are different from or additional to those
available to the Initial Purchaser (in which case the Initial Purchaser shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties, but the Initial Purchaser may employ counsel and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of the Initial Purchaser), in any of which events such
fees and expenses shall be borne by the Initial Purchaser and paid as incurred
(it being understood, however, that the Initial Purchaser shall not be liable
for the expenses of more than one separate counsel in any one action or series
of related actions in the same jurisdiction representing the indemnified parties
who are parties to such action). Anything in this paragraph to the contrary
notwithstanding, the Initial Purchaser shall not be liable for any settlement of
any such claim or action effected without the written consent of the Initial
Purchaser but if settled with the written consent of the Initial Purchaser, the
Initial Purchaser agrees to indemnify and hold harmless the Company, the
Subsidiary Guarantors and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
6. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 5 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 5 of this
Agreement, the Company, the Subsidiary Guarantors and the
-29-
Initial Purchaser shall contribute to the amount paid or payable by such
indemnified party as a result of such aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action or any claims
asserted) to which the Company and/or the Subsidiary Guarantors and the Initial
Purchaser may be subject (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Subsidiary Guarantors, on the
one hand, and the Initial Purchaser, on the other hand, from the Offering or,
(ii) if such allocation is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Subsidiary
Guarantors, on the one hand, and the Initial Purchaser, on the other hand, in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Subsidiary Guarantors, on the one hand, and the Initial Purchaser, on the other
hand, shall be deemed to be in the same proportion as (x) the total proceeds
from the Offering (net of discounts and commissions but before deducting
expenses) received by the Company and the Subsidiary Guarantors and (y) the
total discounts and commissions received by the Initial Purchaser as set forth
in the table on the cover page of the Offering Memorandum. The relative fault
of the Company and the Subsidiary Guarantors, on the one hand, and the Initial
Purchaser, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company (and the Subsidiary Guarantors) or the Initial Purchaser
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission.
The Company, the Subsidiary Guarantors and the Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to this Section
6 were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 6, (i) in no case shall the
Initial Purchaser be required to contribute any amount in excess of the amount
by which the total discount and commissions applicable to the Notes and Exchange
Notes pursuant to this Agreement exceeds the amount of any damages that the
-30-
Initial Purchaser have otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission and (ii) 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 6, each person,
if any, who controls the Initial Purchaser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Initial Purchaser, and each person, if any, who controls the
Company or the Subsidiary Guarantors within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Company or the Subsidiary Guarantors, respectively, where applicable,
subject in each case to clauses (i) and (ii) of this paragraph. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made against another party or parties under this Section 6, notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 6 or otherwise; provided, however, that no additional notice shall be
-------- -------
required with respect to any action for which notice has been given under
Section 5 for purposes of indemnification. No party shall be liable for
contribution with respect to any action or claim settled without its written
consent, provided, however, that such written consent was not unreasonably
-------- -------
withheld.
7. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations
of the Initial Purchaser to purchase and pay for the Notes, as provided for in
this Agreement, shall be subject to satisfaction of the following conditions
prior to or concurrently with such purchase:
(a) All of the representations and warranties of the Company and the
Subsidiary Guarantors contained in this Agreement shall be true and correct
on the date of this Agreement and on the Closing Date. The Company and the
Subsidiary Guarantors shall have performed or complied with all of the
agreements contained in this Agreement and required to be performed or
complied with by them at or prior to the Closing Date.
(b) No stop order suspending the qualification or exemption from
qualification of the Notes in any jurisdiction shall have been issued and
no proceeding for
-31-
that purpose shall have been commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency that would, as of the Closing Date, prevent the issuance of the
Notes or the Exchange Offer; no action, suit or proceeding shall have been
commenced and be pending against or affecting or, to the best knowledge of
the Company and the Subsidiary Guarantors, threatened against the Company
and/or the Subsidiary Guarantors before any court or arbitrator or any
governmental body, agency or official that, if adversely determined, would
result in a Material Adverse Effect.
(d) Since the date as of which information is given in the Offering
Memorandum, except as expressly set forth therein, neither the Company nor
any of its subsidiaries had any material liabilities or obligations, direct
or contingent, that were not set forth in the Company's consolidated
balance sheet as of September 30, 1997 or in the notes thereto. Since the
date as of which information is given in the Offering Memorandum and up to
the Closing Date, except as otherwise expressly set forth in the Offering
Memorandum, (a) none of the Company or its subsid iaries has (1) incurred
any liabilities or obligations, direct or contingent, that would, either
individually or in the aggregate, result in a Material Adverse Effect or
(2) entered into any material transaction not in the ordinary course of
business, and (b) there has not been any event or development in respect of
the business, development or financial condition of the Company or any of
its subsidiaries that would, either individually or in the aggregate,
result in a Material Adverse Effect.
(e) The Initial Purchaser shall have received certificates, dated the
Closing Date, signed by (i) the Chief Executive Officer and (ii) the chief
financial or accounting officer of the Company confirming, as of the
Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of
this Section 7.
(f) The Initial Purchaser shall have received on the Closing Date an
opinion dated the Closing Date, addressed to the Initial Purchaser, of
Dickie, McCamey, & ▇▇▇▇▇▇▇▇, P.C., counsel to the Company, in form and
substance as set forth in Exhibit B hereto.
-32-
(g) The Initial Purchaser shall have received on the Closing Date
opinions, dated the Closing Date, addressed to the Initial Purchaser, of
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to Koppers Australia,
in form and substance reasonably satisfactory to the Initial Purchaser and
counsel for the Initial Purchaser.
(h) The Initial Purchaser shall have received on the Closing Date an
opinion (satisfactory in form and substance to the Initial Purchaser) dated
the Closing Date of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Initial
Purchaser, covering substantially such matters as are customarily covered
in such opinions.
(i) The Initial Purchaser shall have received a "comfort letter" from
Ernst & Young LLP, independent public accountants for the Company and the
Subsidiary Guarantors, dated as of the date of this Agreement, addressed to
the Initial Purchaser and in form and substance satisfactory to the Initial
Purchaser and counsel to the Initial Purchaser. In addition, as of the
Closing Date, the Initial Purchaser shall have received a "bring-down
comfort letter" from Ernst & Young LLP in form and substance satisfactory
to the Initial Purchaser and counsel to the Initial Purchaser covering the
same items and matters as covered in the "comfort letter" but as of a date
that is not more than three days prior to the date thereof and any changes
and additions to the Preliminary Offering Memorandum that were made
producing the Offering Memorandum.
(j) The Company, the Subsidiary Guarantors and the Trustee shall have
entered into the Indenture and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof.
(k) The Company and the Subsidiary Guarantors shall have entered into
the Registration Rights Agreement and the Initial Purchaser shall have
received counterparts, conformed as executed, thereof.
(l) The Company shall have executed the Recapitalization Documents,
which shall be in form and substance satisfactory to the Initial Purchaser
and counsel to the Initial Purchaser; and the Initial Purchaser shall have
received counterparts, conformed as executed thereof. The Company shall
have consummated the Recapitalization Transactions in accordance therewith.
-33-
(m) The Company shall have executed the Other Documents, which shall
be in form and substance satisfactory to the Initial Purchaser and counsel
to the Initial Purchaser; and the Initial Purchaser shall have received
counterparts, conformed as executed thereof. The Company shall have
consummated that portion of the APT Redemption to be consummated on the
Closing Date in accordance therewith.
(n) The Notes shall have been approved as eligible for trading in the
PORTAL market.
(o) Between the time of execution of this Agreement and the time of
purchase of the Notes, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the
Company or any subsidiary of the Company by any "nationally recognized
statistical rating organization", as that term is defined in Rule 436(g)(2)
under the Act.
(p) The Initial Purchaser shall have been furnished with certified
copies of such documents as they may reasonably request, including, but not
limited to, certified copies of the Transaction Documents, and all closing
documents from the closings of the transactions contemplated hereby.
(q) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchaser, shall
have been furnished with such documents as they may reasonably request to
enable them to review or pass upon the matters referred to in this Section
7 and in order to evidence the accuracy, completeness or satisfaction in
all material respects of any of the representations, warranties or
conditions contained in this Agreement.
(r) The Initial Purchaser shall have received on or before the Closing
Date an opinion (satisfactory in form and substance to the Initial
Purchaser and its counsel) dated the Closing Date, addressed to the Initial
Purchaser, of Houlihan, Lokey, ▇▇▇▇▇▇ & Zukin supporting the conclusion
that, after giving effect to the Transactions, each of the Company and
Koppers Australia will not be insolvent.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by
-34-
the Initial Purchaser on notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except that the Company shall reimburse the Initial Purchaser
for all of the reasonable out-of-pocket expenses, including the reasonable
expense of Initial Purchaser's counsel, incurred by the Initial Purchaser in
connection with this Agreement. Notwithstanding any such termination, the
provisions of Sections 3(e), 5, 6, 9, 10(d) and 13 shall remain in effect.
The Company's obligation under this Agreement to sell the Notes to the
Initial Purchaser on the Closing Date is subject to the Initial Purchaser
purchasing and paying for all of the Notes.
8. INITIAL PURCHASER'S INFORMATION. The Company and the Initial
Purchaser severally acknowledge that the statements set forth in (i) the last
paragraph on the front cover page con cerning the forms of the offering by the
Initial Purchaser; (ii) the first paragraph on page 3 concerning stabilization
activities by the Initial Purchaser; and (iii) the statements concerning the
Initial Purchaser contained in the fifth paragraph under the caption "Plan of
Distribution" in the Offering Memorandum constitute the only information
furnished in writing by the Initial Purchaser expressly for use in the Offering
Memorandum.
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations
and warranties, covenants and agreements contained in this Agreement, including
the agreements contained in Sections 3(e) and 10(d), the indemnity agreements
contained in Section 5 and the contribution agreements contained in Section 6
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchaser or any controlling
person thereof or by or on behalf of the Company, any of the Subsidiary
Guarantors or any controlling person of any thereof, and shall survive delivery
of and payment for the Notes to and by the Initial Purchaser. The
representations contained in Section 4 and the agreements contained in Sections
3(e), 5, 6, 10(d) and 13 shall survive the termination of this Agreement,
including pursuant to Sections 7 and 10.
10. EFFECTIVE DATE OF AGREEMENT; TERMINATION. (a) This Agreement
shall become effective upon execution and delivery of a counterpart hereof by
each of the parties hereto.
(b) The Initial Purchaser shall have the right to terminate this
Agreement at any time prior to the Closing Date by
-35-
notice to the Company from the Initial Purchaser, without liability (other than
with respect to Sections 5 and 6) on the Initial Purchaser if, on or prior to
such date, (i) the Company or any of the Subsidiary Guarantors shall have
failed, refused or been unable to perform in any material respect any agreement
on its part to be performed under this Agreement, (ii) any other condition of
the obligations of the Initial Purchaser under this Agreement as provided in
Section 7 is not fulfilled when and as required in any material respect, (iii)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, or minimum prices shall have been established
on such exchange by the Commission, or by such exchange or other regulatory body
or governmental authority having jurisdiction, (iv) a general banking moratorium
shall have been declared by U.S. federal, New York or Australian authorities, or
if a moratorium in foreign exchange trading by major international banks or
persons shall have been declared, (v) there is an outbreak or escalation of
hostilities or other national or international calamity on or after the date of
this Agreement, or if there has been a declaration by the United States of a
national emergency or war, the effect of which shall be, in the Initial
Purchaser's judgment, to make it inadvisable or impracticable to proceed with
the offering or delivery of the Notes on the terms and in the manner
contemplated in the Offering Memorandum or (vi) there shall have been such a
material adverse change in general economic, political or financial conditions
or the effect (or potential effect if the financial markets in the United States
have not yet opened) of international conditions on the financial markets in the
United States shall be such as, in the Initial Purchaser's judgment, to make it
inadvisable or impracticable to proceed with the offering or delivery of the
Notes on the terms and in the manner contemplated in the Offering Memorandum.
(c) Any notice of termination pursuant to this Section 10 shall be
given at the address specified in Section 11 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any clause of
Section 10(b), or if the sale of the Notes provided for in this Agreement is not
consummated because any condition to the obligations of the Initial Purchaser
set forth in this Agreement is not satisfied or because of any refusal,
inability or failure on the part of either of the Company or any Subsidiary
Guarantor to perform any agreement in this Agreement or comply with any
provision of this Agreement, the Company and the Subsidiary Guarantors will,
subject to demand by the Initial
-36-
Purchaser, reimburse the Initial Purchaser for all of its reasonable out-of-
pocket expenses (including the reasonable fees and expenses of the Initial
Purchaser's counsel) incurred in connection with this Agreement.
11. NOTICE. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Initial Purchaser, shall be mailed,
delivered, or telexed, telegraphed or telecopied and confirmed in writing to SBC
Warburg Dillon Read Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Corporate Finance Department, telecopy
number: (▇▇▇) ▇▇▇-▇▇▇▇; and if sent to the Company or the Subsidiary
Guarantors, shall be mailed, delivered or telexed, telegraphed or telecopied and
confirmed in writing to Koppers Industries, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Chief
Financial Officer, and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopy
number: (▇▇▇) ▇▇▇-▇▇▇▇.
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) when answered back, if telexed; (iv) when receipt acknowledged if
telecopied; and (v) on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
12. PARTIES. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Initial Purchaser and the Company and the
Subsidiary Guarantors and the controlling persons and agents referred to in
Sections 5 and 6, and their respective successors and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provision
herein contained. The term "successors and assigns" shall not include a
----------------------
purchaser, in its capacity as such, of Notes from the Initial Purchaser.
13. CONSTRUCTION. This Agreement shall be construed in accordance
with the internal laws of the State of New York (without giving effect to any
provisions thereof relating to conflicts of law) and each of the parties hereto
consent to the jurisdiction of the courts of the State of New York. Each of the
parties hereto agrees to submit to the jurisdiction of the courts of the State
of New York and the U.S. Federal Courts sitting in the City of New York for the
purposes of any suit, action or
-37-
proceeding arising out of or relating to this Indenture. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of the Initial Purchaser to bring proceedings against the
Company and/or the Subsidiary Guarantors in the courts of any other
jurisdiction.
14. CAPTIONS. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
15. SUBMISSION TO JURISDICTION. The Subsidiary Guarantors
irrevocably submit to the nonexclusive jurisdiction of any State or Federal
court sitting in New York over any suit, action or proceeding arising out of or
relating to this agree ment. The Subsidiary Guarantors irrevocably waive, to
the fullest extent permitted by law, any objection they may now or thereafter
have to the laying of venue of any such court and any claim that any such suit,
action or proceeding brought in such a court has been brought in an inconvenient
forum. The Subsidiary Guarantors agree that a final judgment in any such suit,
action or proceeding brought in any such court shall be conclusive and binding
upon the Subsidiary Guarantors and may be enforced in any other courts to the
jurisdiction of which the Subsidiary Guarantors are or may be subject, by suit
upon such judgment. The Subsidiary Guarantors hereby appoint, without power of
revocation, CT Corporation System as their agent to accept and acknowledge on
its behalf service of any and all process which may be served in any suit,
action or proceeding arising out of or relating to this letter.
16. COUNTERPARTS. This Agreement may be executed in various
counterparts and by the parties to this Agreement in separate counterparty, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
17. MISCELLANEOUS. SBC Warburg Dillon Read Inc., an indirect, wholly
owned subsidiary of Swiss Bank Corporation, is not a bank and is separate from
any affiliated bank, including any U.S. branch or agency of Swiss Bank
Corporation. Because SBC Warburg Dillon Read Inc. is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales purchases of
securities. Securities sold, offered or recommended by SBC Warburg Dillon Read
Inc. are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise an
obligation or responsibility of a branch or agency.
-38-
A lending affiliate of SBC Warburg Dillon Read Inc. may have lending
relationships with issuers of securities underwritten or privately placed by SBC
Warburg Dillon Read Inc. To the extent required under the securities laws,
prospectuses and other disclosure documents for securities underwritten or
privately placed by SBC Warburg Dillon Read Inc. will disclose the existence of
any such lending relationships and whether the proceeds of the issue will be
used to repay debts owed to affiliates of SBC Warburg Dillon Read Inc.
Without our prior written approval, the U.S. branches and agencies of
Swiss Bank Corporation will not share with SBC Warburg Dillon Read Inc. any non-
public information concerning you, and SBC Warburg Dillon Read Inc. will not
share any non-public information received from us with any of such U.S. branches
and agencies of Swiss Bank Corporation.
If the foregoing correctly sets forth the understanding among the Company, the
Subsidiary Guarantors and the Initial Purchaser, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company, the Subsidiary guarantors and
the Initial Purchaser.
KOPPERS INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
KOPPERS INDUSTRIES INTERNATIONAL
TRADE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
WORLD WIDE VENTURES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
KOPPERS INDUSTRIES OF DELAWARE,
INC.
By: /s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and Treasurer
KOPPERS CONCRETE PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
CONCRETE PARTNERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
KOPPERS INDUSTRIES B.W., INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
Confirmed and accepted as
of the date first above
written:
SBC WARBURG DILLON READ INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Executive Director
Each of the undersigned by its execution hereof agrees to become a party to this
Agreement as a Guarantor as of the date set forth opposite its name:
Date: December 1, 1997
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KOPPERS AUSTRALIA PTY LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Under Power of Attorney
CONTINENTAL CARBON AUSTRALIA
PTY LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Under Power of Attorney
KOPPERS TIMBER PRESERVATION
PTY LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Under Power of Attorney
KOPPERS COAL TAR PRODUCTS PTY
LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Under Power of Attorney
KOPPERS SHIPPING PTY LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Under Power of Attorney
Each of the undersigned by its execution hereof agrees to become a party to this
Agreement as a Guarantor as of the date set forth opposite its name:
Date: December 1, 1997
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KOPPERS FOREIGN INVESTMENT
CORPORATION
By: /s/ M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
Exhibit A
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Form of Registration Rights Agreement
Exhibit B
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Form of Opinion of Dickie, McCamie & ▇▇▇▇▇▇▇▇, P.C.