Exhibit 1.2
Constar International Inc.
$200,000,000
___% Senior Subordinated
Notes due ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
November [ ], 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Deutsche Bank Securities Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representatives of the
several Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Constar International Inc., a corporation organized under the
laws of Delaware (the "Company"), proposes to sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, $200,000,000 principal amount
of its __% Senior Subordinated Notes due 2012 (the "Securities"). The Securities
are to be fully and unconditionally guaranteed jointly and severally on an
unsecured, senior subordinated basis (each such existing guarantee, a
"Subsidiary Guarantee," and collectively, the "Subsidiary Guarantees") initially
by all the United States restricted subsidiaries of the Company that are
signatories to this Agreement (each such existing guarantor, a "Subsidiary
Guarantor," and collectively, the "Subsidiary Guarantors"). The Securities are
to be issued under an indenture (the "Indenture") to be dated as of November
[ ], 2002, between the Company, the Subsidiary Guarantors and ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as trustee (the "Trustee").
To the extent there are no additional Underwriters listed on
Schedule I hereto other than you, the term Representatives as used herein shall
mean you, as Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context
requires. The use of the neuter in this Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used herein are defined in Section
17 hereof.
Concurrently with the offering of the Securities, it is
understood that Crown Cork & Seal Company, Inc., a corporation organized under
the laws of the Commonwealth of Pennsylvania (the "Parent"), is offering to sell
12,000,000 shares of common stock, $0.01 par value ("Common Stock"), of the
Company, and the Company is offering to sell 1,800,000 shares of Common Stock
("Option Shares") if the over-allotment option is exercised in full, pursuant to
a prospectus dated ___, 2002 (the "Common Stock Offering").
1. Representations and Warranties.
------------------------------
(i) The Company, with respect to itself and each of the Subsidiary
Guarantors, and each of the Subsidiary Guarantors, with respect to itself,
as to those matters set forth in paragraphs (a), (b), (c), (d), (g), (h),
(i), (k), (l), (o) and (y), jointly and severally represent and warrant to,
and agree with, each Underwriter as set forth below in this Section 1(i).
(a) The Company and the Subsidiary Guarantors have prepared and filed
with the Commission a registration statement (file number 333-88878) on
Form S-1, including a related preliminary prospectus, for registration
under the Act of the offering and sale of the Securities. The Company and
the Subsidiary Guarantors may have filed one or more amendments thereto,
including a related preliminary prospectus, each of which has previously
been furnished to you. The Company and the Subsidiary Guarantors will next
file with the Commission either (1) prior to the Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of final prospectus) or (2) after the Effective Date of
such registration statement, a final prospectus in accordance with Rules
430A and 424(b). In the case of clause (2), the Company and the Subsidiary
Guarantors have included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such registration
statement and the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Company
and the Subsidiary Guarantors have advised you, prior to the Execution
Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined in Section 3 below) the
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein
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or necessary in order to make the statements therein not misleading; on the
Effective Date and on the Closing Date, the Indenture did or will comply in
all material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, the Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company and the Subsidiary Guarantors make no
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representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(c) Each of the Company, its Subsidiaries and the Subsidiary
Guarantors has been duly incorporated and is validly existing as a
corporation (or if not a corporation, has been duly formed and is validly
existing) under the laws of the jurisdiction in which it is chartered or
organized and, with respect to the Company and any such Subsidiary
Guarantor or Subsidiary incorporated in the United States, is a corporation
in good standing under such laws and, in all cases, has corporate power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to so qualify or be in good
standing would not have a Material Adverse Effect.
(d) All the outstanding shares of capital stock of each Subsidiary and
Subsidiary Guarantor have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in the
Prospectus and assuming consummation of the transactions described in the
Prospectus, all outstanding shares of capital stock of the Subsidiaries and
the Subsidiary Guarantors are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances,
except for any such perfected security interests or other security
interests, claims, liens or encumbrances that would not have a Material
Adverse Effect, and except for the lien on the capital stock of the
Subsidiaries and the Subsidiary Guarantors under the Amended and Restated
Credit Agreement, dated February 4, 2002, among the Parent, the subsidiary
borrowers referred to therein, the lenders referred to therein and JPMorgan
Chase Bank, as administrative agent (the "Crown Credit Agreement"), which
lien will be released with respect to the capital stock of the Subsidiaries
and Subsidiary Guarantors on the Closing Date.
(e) The Company's authorized equity capitalization is as set forth in
the Prospectus; the capital stock of the Company conforms in all material
respects to the
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description thereof contained in the Prospectus; the outstanding shares of
Common Stock (including the Common Stock being sold in the Common Stock
Offering) have been duly and validly authorized and issued and are fully
paid and nonassessable; the Common Stock being sold in the Common Stock
Offering and the Option Shares to be issued and sold by the Company if
the Underwriters exercise their over-allotment option, when issued and
delivered to the Underwriters against payment therefor, will be duly
listed, admitted and authorized for quotation on the Nasdaq National
Market; and, except as set forth in the Prospectus, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding.
(f) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required; and the statements in the Prospectus under the headings "Material
United States Federal Income Tax Consequences," "Our Business--Intellectual
Property" and "Our Business--Legal Matters" fairly summarize the matters
therein described.
(g) This Agreement has been duly authorized, executed and delivered by
each of the Company and the Subsidiary Guarantors and constitutes a valid
and binding obligation of each of the Company and the Subsidiary Guarantors
enforceable in accordance with its terms.
(h) The Indenture has been duly authorized, executed and delivered by
the Company and the Subsidiary Guarantors, has been duly qualified under
the Trust Indenture Act, and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a legal, valid and binding
instrument enforceable against each of the Company and the Subsidiary
Guarantors in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at law); and
the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this Agreement,
will constitute legal, valid and binding obligations of each of the Company
and the Subsidiary Guarantors entitled to the benefits of the Indenture
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
(i) The Subsidiary Guarantees have been duly authorized by each
Subsidiary Guarantor and, when the Securities are executed and
authenticated in accordance with provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, will be valid and binding obligations of each Subsidiary
Guarantor, enforceable in accordance with their terms (subject to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect, and to
general principles of equity,
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including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered in a
proceeding in equity or at law), and will be entitled to the benefits of
the Indenture.
(j) None of the Company or any Subsidiary Guarantor is and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus, none of
the Company or any Subsidiary Guarantor will be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(k) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required for the consummation by
the Company and the Subsidiary Guarantors of the transactions contemplated
herein, except such as have been obtained under the Act and the Trust
Indenture Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Prospectus, and except where the failure to obtain such consent, approval,
authorization, filing or order would not have a material adverse effect on
the issuance and sale of the Securities or the consummation of any of the
other transactions contemplated herein.
(l) Neither the issuance and sale of the Securities nor the
consummation of any other of the transactions contemplated herein nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, any Subsidiary or any Subsidiary
Guarantor pursuant to (i) the charter, by-laws or other similar
organizational document of the Company, any Subsidiary or any Subsidiary
Guarantor, (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company, any Subsidiary or
any Subsidiary Guarantor is a party or bound or to which its or their
property is subject or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company, any Subsidiary or any Subsidiary
Guarantor of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company, any Subsidiary or any Subsidiary Guarantor or any of its or
their properties, except, in the case of clauses (ii) and (iii) above for
such conflict, breach, violation or imposition that would not have a
material adverse effect on the issuance and sale of the securities or the
consummation of any of the other transactions contemplated herein.
(m) Before giving effect to the Common Stock Offering, the Parent owns
all of the outstanding stock of the Company.
(n) The combined historical financial statements of the Company and
its consolidated subsidiaries included in the Prospectus and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein). The selected
5
financial data set forth under the caption "Selected Financial Data" in the
Prospectus and Registration Statement fairly present, on the basis stated
in the Prospectus and the Registration Statement, the information included
therein. The pro forma financial statements included in the Prospectus and
the Registration Statement include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro forma
adjustments reflect the proper application of those adjustments to the
historical financial statement amounts in the pro forma financial
statements included in the Prospectus and the Registration Statement. The
pro forma financial statements included in the Prospectus and the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X under the Act and the
pro forma adjustments have been properly applied to the historical amounts
in the compilation of those statements.
(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, any Subsidiary or any Subsidiary Guarantor or its or their
property is pending or, to the knowledge of the Company, threatened that
(i) could reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) would have a Material Adverse
Effect.
(p) Each of the Company and each of the Subsidiaries owns or leases
all such properties as are necessary to the conduct of its operations as
presently conducted, except where the failure to own or lease such
properties would not have a Material Adverse Effect.
(q) Neither the Company nor any Subsidiary is in violation or default
of (i) any provision of its charter, bylaws or other similar organizational
document, (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such Subsidiary or any of its properties,
as applicable, except, in the case of clause (ii) or (iii), for any such
violation or default that would not have a Material Adverse Effect.
(r) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their report with respect to the audited combined financial statements
included in the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(s) There are no transfer taxes or other similar fees or charges under
federal law or the laws of any state, or any political subdivision thereof,
required to be paid by the Company or any Subsidiary in connection with the
execution and delivery of this Agreement.
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(t) The Company and each of its Subsidiaries has filed all
foreign, federal, state and local tax returns that are required to be
filed or has requested extensions thereof (except in any case in which
the failure so to file would not have a Material Adverse Effect) and
has paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would
not have a Material Adverse Effect.
(u) No labor problem or dispute with the employees of the Company
or any of its Subsidiaries exists or, to the Company's knowledge, is
threatened or imminent, and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its or its
Subsidiaries' principal suppliers, contractors or customers, that
could have a Material Adverse Effect.
(v) The Company and each Subsidiary are insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in
which they are engaged; all policies of insurance and fidelity or
surety bonds insuring the Company or any Subsidiary or their
respective businesses, assets, employees, officers and directors are
in full force and effect; the Company and the Subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or any
Subsidiary under any such policy or instrument as to which any
insurance company is denying liability or defending under a
reservation of rights clause; neither the Company nor any Subsidiary
has been refused any insurance coverage sought or applied for; and
neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect.
(w) Assuming consummation of the transactions described in the
Prospectus, no Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any
other distribution on such Subsidiary's capital stock, from repaying
to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary's property or
assets to the Company or any other Subsidiary, except as described in
or contemplated by the Prospectus or pursuant to the Indenture or the
Credit Agreement.
(x) The Company and each of the Subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, except where the failure to
possess such licenses, certificates, permits or other authorizations
would not have a Material Adverse Effect, and neither the Company nor
any such Subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
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(y) The Company, each Subsidiary and each Subsidiary Guarantor
maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(z) The Company has not taken, directly or indirectly, any action
that has constituted or that was designed to, or might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(aa) Except as set forth in the Prospectus, the Company and the
Subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous
or toxic substances or wastes, pollutants or contaminants, except
where such non-compliance with Environmental Laws, failure to receive
or comply with required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a Material
Adverse Effect. Except as set forth in the Prospectus, neither the
Company nor any of the Subsidiaries has been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(bb) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries, in the
course of which it seeks to identify and evaluate associated material
costs and liabilities (including, without limitation, any material
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect.
(cc) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of
1974 ("ERISA") and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in Section 3(3) of
ERISA and such regulations and published interpretations) in which
employees of the Company and the Subsidiaries are eligible to
participate and each such plan is in
8
compliance in all material respects with the presently applicable
provisions of ERISA and such regulations and published
interpretations. The Company and the Subsidiaries have not incurred
any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to
any such plan under Title IV of ERISA.
(dd) As of the Closing Date, the subsidiaries listed on Annex A
attached hereto will be the only significant subsidiaries of the
Company as defined by Rule 1-02 of Regulation S-X (the
"Subsidiaries").
(ee) The Company or the Subsidiaries on the Closing Date will
own, possess, license or have other rights to use, all patents, patent
applications, trade and service marks, trade and service ▇▇▇▇
registrations, trade names, copyrights, inventions, trade secrets,
technology, know-how and other intellectual property (collectively,
the "Intellectual Property") necessary for the conduct of their
respective businesses as now conducted or as proposed in the
Prospectus to be conducted, except where the failure to own, possess,
license or have other such rights would not have a Material Adverse
Effect. Except as set forth in the Prospectus, (i) there are no rights
of third parties to any such Intellectual Property, except for
commercial shrink-wrap software; (ii) to the knowledge of the Company,
there is no material infringement by third parties of any such
Intellectual Property; (iii) there is no pending or, to the knowledge
of the Company, threatened action, suit, proceeding or claim by any
third party challenging the Company's or the Subsidiaries' rights in
or to any such Intellectual Property that would have a Material
Adverse Effect, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (iv) there is no pending
or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by any third party challenging the validity or
scope of any such Intellectual Property that would have a Material
Adverse Effect, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (v) there is no pending
or, to the knowledge of the Company, threatened action, suit,
proceeding or claim by any third party that the Company or any
Subsidiary infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others that
would have a Material Adverse Effect, and the Company is unaware of
any other fact which would form a reasonable basis for any such claim;
(vi) to the knowledge of the Company, there is no valid and subsisting
U.S. patent or published U.S. patent application that would preclude
the Company from practicing any material Intellectual Property that is
owned by or licensed to the Company or any Subsidiary; and (vii) to
the knowledge of the Company, all material patents owned by the
Company or the Subsidiaries are valid and enforceable.
(ff) The statements contained in the Prospectus under the
captions "Risk Factors -- We Enjoy Only Limited Protection for Our
Intellectual Property," "Risk Factors -- If We Lose An Existing
Lawsuit Regarding Oxbar, We May Lose A Potential Source of Revenue,"
and "Business -- Intellectual Property," insofar as such statements
summarize legal matters, agreements, documents, or proceedings
discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings.
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Any certificate signed by any officer of the Company or any Subsidiary Guarantor
and delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Company or such Subsidiary Guarantor, as to matters covered
thereby, to each Underwriter.
(ii) The Parent represents and warrants to, and agrees with, each
Underwriter that:
(a) The Parent has been duly incorporated and is validly existing
as a corporation under the laws of the jurisdiction in which it is
organized and is a corporation in good standing under the laws of such
jurisdiction and has corporate power and authority to own or lease, as
the case may be, and to operate its properties and conduct its
business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification, except
where the failure to so qualify or be in good standing would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Parent, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Prospectus
(exclusive of any supplement thereto).
(b) This Agreement has been duly authorized, executed and
delivered by the Parent and constitutes a valid and binding obligation
of the Parent enforceable in accordance with its terms.
(c) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Parent of the transactions contemplated herein, except such as may
have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals as have been obtained, and except where the failure to
obtain such consent, approval, authorization, or order would not have
a material adverse effect on the issuance and sale of the Securities
or the consummation of any of the other transactions contemplated
herein.
(d) Neither the issuance and sale of the Securities being sold
hereunder nor the consummation of any other of the transactions
contemplated herein or the fulfillment of the terms hereof by the
Parent will conflict with, result in a breach or violation of,
or constitute a default under (i) any law, (ii) the charter or by-laws
Parent, (iii) the terms of any indenture or other agreement or
instrument to which the Parent is a party or bound, or (iv) any
judgment, order or decree applicable to the Parent of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Parent, except, in the case of
clauses (i), (iii) and (iv), for such conflict, breach, violation or
default that would not have a material adverse effect on the issuance
and sale of the Securities or the consummation of any of the other
transactions contemplated herein.
(e) The Parent has no reason to believe that the representations
and warranties of the Company contained in this Section 1 are not true
and correct, is familiar with the Registration Statement and has no
knowledge of any material fact, condition or information not disclosed
in the Prospectus or any supplement thereto which has adversely
affected or may adversely affect the business of the Company or any of
its subsidiaries; and the sale of Securities by the Parent pursuant
hereto is not prompted by any information concerning the Company or
any of its subsidiaries which is not set forth in the Prospectus or
any supplement thereto.
(f) In respect of any statements in or omissions from the
Registration Statement or the Prospectus or any supplements thereto
made in reliance upon and in conformity with information regarding the
Parent furnished in writing to the Company by the Parent specifically
for use in connection with the preparation thereof, the Parent hereby
makes the same representations and warranties to each Underwriter as
the Company makes to such Underwriter under paragraph (i)(b) of this
Section.
10
Any certificate signed by any officer of the Parent and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Parent,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties set forth herein, the
Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a
purchase price of ___% of the principal amount thereof, plus accrued
interest, if any, on the Securities from ____, 2002 to the Closing
Date, the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
--------------------
Securities shall be made at 10:00 AM, New York City time, on [Closing
Date], or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate,
which date and time may be postponed by agreement among the
Representatives, the Company and the Parent or as provided in Section
9 hereof (such date and time of delivery and payment for the
Securities being called herein the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price of the
Securities to or upon the order of the Company by wire transfer
payable in same-day funds to the account specified by the Company.
Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to offer the Securities for sale to the public as
set forth in the Prospectus.
5. Agreements.
----------
(i) Each of the Company and the Subsidiary Guarantors agrees with
the several Underwriters that:
(a) It will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering
of the Securities, it will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless you have been furnished a copy for your
review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), it will cause the Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. It will promptly advise the
Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have
11
become effective, (2) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (4) of any
request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. It will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the rules thereunder, it
promptly will (1) notify the Representatives of any such event, (2)
prepare and file with the Commission, subject to the second sentence
of paragraph (i)(a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) Through the timely filing of periodic reports under the
Exchange Act, the Company will make generally available to its
security holders and to the Representatives an earnings statement or
statements of the Company, its Subsidiaries and the Subsidiary
Guarantors which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company and the Subsidiary Guarantors will furnish to the
Representatives and counsel for the Underwriters signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Prospectus and the Prospectus and any supplement thereto as the
Representatives may reasonably request.
(e) The Company and the Subsidiary Guarantors will arrange, if
necessary, for the qualification of the Securities for sale under the
laws of such jurisdictions as the Representatives may designate and
will maintain such qualifications in effect so long as required for
the distribution of the Securities and will pay any fee of the
National Association of Securities Dealers, Inc., in connection with
its review of the offering;
12
provided that in no event shall the Company or any Subsidiary
--------
Guarantor be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to execute a general consent to
service of process in any jurisdiction in which such a consent has not
been previously filed or to subject itself to taxation in any
jurisdiction wherein it would not otherwise be subject to tax but for
the requirements of this paragraph.
(f) It will not, without the prior written consent of ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Deutsche Bank Securities Inc., offer, sell,
contract to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person with whom the
Company or any affiliate of the Company has an agreement with respect
to securities of the Company), directly or indirectly, any high yield
debt securities issued or guaranteed by the Company or warrants to
purchase high yield debt securities of the Company (other than the
Securities) or publicly announce an intention to effect any such
transaction, for a period of 180 days after the date of this
Agreement.
(g) It will not take, directly or indirectly, any action that
constitutes or that is designed to or might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(ii) The Parent agrees with the several Underwriters that:
(a) The Parent will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and Deutsche Bank Securities Inc., offer,
sell, contract to sell, pledge or otherwise dispose of (or enter into
any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by
the Parent or any affiliate of the Parent or any person with whom the
Parent or any affiliate of the Parent has an agreement with respect to
securities of the Company), directly or indirectly, any high yield
debt securities issued or guaranteed by the Company or warrants to
purchase high yield debt securities of the Company (other than the
Securities) or publicly announce an intention to effect any such
transaction, for a period of 180 days after the date of this
Agreement.
(b) The Parent will advise the Representatives promptly, and if
requested by the Representatives, will confirm such advice in writing,
so long as delivery of a prospectus relating to the Securities by an
underwriter or dealer may be required under the Act, of (i) any
material change in the Company's condition (financial or otherwise),
earnings, business or properties, (ii) any change in information in
the Registration Statement or the Prospectus relating to the Parent or
(iii) any new material information relating to the Company or relating
to any matter stated in the Prospectus which comes to the attention of
the Parent.
13
(c) The Parent agrees to pay the costs and expenses relating to
the following matters: (1) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), each
Preliminary Prospectus, the Prospectus and each amendment or
supplement to any of them; (2) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Registration Statement,
each Preliminary Prospectus, the Prospectus and all amendments or
supplements to any of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the
Securities; (3) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp
or transfer taxes in connection with the original issuance and sale of
the Securities; (4) the printing (or reproduction) and delivery of
this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (5) the registration of the Securities
under the Exchange Act; (6) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of
the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration
and qualification); (7) any filings required to be made with the
National Association of Securities Dealers, Inc. (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (8) the transportation and
other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the
Securities; (9) the fees and expenses of the Company's, the Subsidiary
Guarantors' and the Parent's accountants and the fees and expenses of
counsel (including local and special counsel) for the Company, the
Subsidiary Guarantors and the Parent; and (10) all other costs and
expenses incident to the performance by the Company, the Subsidiary
Guarantors and the Parent of their obligations hereunder.
(iii) Each Underwriter severally represents and agrees that:
(a) it has not offered or sold and, prior to the expiry of six
months from the Closing Date, will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995;
(b) it has only communicated and caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 ("FSMA"))
received by it in connection with the issue or sale of any Securities
in circumstances in which section 21(1) of the FSMA does not apply to
the Company;
14
(c) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom;
and
(d) the offer in The Netherlands of the Securities is
exclusively limited to persons who trade or invest in securities in the
conduct of a profession or business (which include banks, stockbrokers,
insurance companies, pension funds, other institutional investors and
finance companies and treasury departments of large enterprises).
6. Conditions to the Obligations of the Underwriters. The obligations of
-------------------------------------------------
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company, the Subsidiary
Guarantors and the Parent contained herein as of the Execution Time, the Closing
Date and any settlement date pursuant to Section 3 hereof, to the accuracy of
the statements of the Company, the Subsidiary Guarantors and the Parent made in
any certificates pursuant to the provisions hereof, to the performance by the
Company, the Subsidiary Guarantors and the Parent of their respective
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time on the date of determination
of the public offering price, if such determination occurred at or
prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on
the Business Day following the day on which the public offering price
was determined, if such determination occurred after 3:00 PM New York
City time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any
such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have requested and caused Dechert, counsel
for the Company and the Subsidiary Guarantors, to have furnished to
the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) each of the Company and the Subsidiary Guarantors, has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction in which it
is incorporated, with corporate power and corporate authority to
own or lease, as the case may be, and to operate its properties
and conduct its business as described in the Prospectus, and, in
the case of the Company, is duly qualified to do business as a
foreign corporation and is in good standing under the laws of the
Commonwealth of Pennsylvania;
(ii) except as otherwise set forth in the Prospectus, the
outstanding shares of capital stock of Constar, Inc. and Constar
Foreign Holdings, Inc. owned by the Company are owned
15
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the knowledge of
such counsel, any other security interest, claim, lien or
encumbrance; and to the knowledge of such counsel, based solely
upon a report as to UCC financing statements on file against the
Company, Constar Foreign Holdings, Inc., Crown Cork & Seal
Company, Inc., Crown UK Holdings Ltd. and Crown Cork Netherlands
Holding BV with the Secretary of State of the State of New York,
the Secretary of State of the Commonwealth of Pennsylvania and
the Secretary of State of the State of Delaware, there is no
security interest, claim, lien or encumbrance with respect to the
outstanding shares of capital stock of Constar International
Holland (Plastics) BV and Constar International UK Ltd.;
(iii) the Company's authorized equity capitalization is as
set forth in the Prospectus and the Securities conform in all
material respects to the description thereof contained in the
Prospectus;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors, has been
duly qualified under the Trust Indenture Act, and, assuming due
authentication, execution and delivery by the Trustee,
constitutes a legal, valid and binding instrument enforceable
against the Company and the Subsidiary Guarantors in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to
time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a
proceeding in equity or at law); and the Securities have been
duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of the Company
and the Subsidiary Guarantors entitled to the benefits of the
Indenture;
(v) the Subsidiary Guarantees have been duly authorized and,
when the Securities have been duly executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this Agreement, will
constitute legal, valid and binding obligations of each
Subsidiary Guarantor, enforceable in accordance with their terms
(subject, as to enforcement and remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in
effect, and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith
and fair dealing, regardless of whether considered in a
proceeding in equity or at law) and entitled to the benefits of
the Indenture;
(vi) the statements included in the Prospectus under the
heading "Material United States Federal Tax Consequences,"
insofar as such statements constitute a summary of the legal
matters or documents referred to therein, fairly present the
information called for with respect to such legal matters or
documents;
(vii) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened;
16
(viii) this Agreement has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors;
(ix) the Company is not and, after giving effect to the
offering and sale of the Securities (including the concurrent
Common Stock Offering and the Company's concurrent receipt of
term loans as described in the Prospectus) and the application of
the proceeds thereof as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company Act
of 1940, as amended;
(x) no consent, approval, authorization, filing with or
order of any Pennsylvania, New York, Delaware or U.S. Federal
court or governmental agency or body is required for the
consummation by the Company and the Subsidiary Guarantors of the
transactions contemplated herein, except (1) such as have been
obtained under the Act, (2) such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities or the Subsidiary Guarantees
by the Underwriters in the manner contemplated in this Agreement
and in the Prospectus, as to which such counsel need express no
opinion, (3) such other approvals (specified in such opinion) as
have been obtained and (4) except where the failure to obtain
such consent, approval, authorization, filing or order would not
have a material adverse effect on the issuance and sale of the
Securities or the Subsidiary Guarantees or the consummation of
any of the other transactions contemplated herein;
(xi) neither the execution and delivery of the Indenture,
nor the issue and sale of the Securities, nor the consummation of
any other of the transactions contemplated herein nor the
fulfillment of the terms hereof will (1) conflict with or result
in a breach or violation of the charter or by-laws of the Company
or the Subsidiary Guarantors, (2) result in a material breach or
violation of, or the imposition of any material lien, charge or
encumbrance upon any property or assets of the Company, its
Subsidiaries or the Subsidiary Guarantors pursuant to the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument that is material to the Company
and its subsidiaries, taken as a whole, and that is known to such
counsel after due inquiry to which the Company, its Subsidiaries
or the Subsidiary Guarantors is a party or bound or to which its
or their property is subject, or (3) conflict with or violate in
any material respect any Delaware corporate, Pennsylvania, New
York or U.S. Federal statute, law, rule or regulation applicable
to the Company, its Subsidiaries or the Subsidiary Guarantors, or
any judgment, order or decree known to such counsel after due
inquiry to be applicable to the Company, its Subsidiaries or the
Subsidiary Guarantors of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company, its Subsidiaries
or the Subsidiary Guarantors or any of its or their properties
(other than U.S. Federal or state securities or blue sky laws,
other anti-fraud laws and fraudulent transfer laws and
bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights, as to which such counsel need not express any opinion);
and
17
(xii) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of
America, the law of the Commonwealth of Pennsylvania, the law of the
State of New York and the General Corporation Law of the State of
Delaware. In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the Commonwealth of Pennsylvania, the State of Delaware, the State
of New York or the Federal laws of the United States and as to matters
involving the application of laws relating to intellectual property, to
the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters and
(B) as to matters of fact, to the extent they deem proper, on written
statements or certificates of responsible officers of the Company, the
Subsidiary Guarantors and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date
(or the applicable settlement date) to the effect that (i) the
Registration Statement and the Prospectus (other than the financial
statements (including pro forma financial statements and notes to
financial statements or pro forma financial statements) and related
schedules and other financial, accounting or statistical information
included in or excluded from the Registration Statement or the
Prospectus, as to which such counsel need express no belief) appear on
their face to be appropriately responsive in all material respects to
the requirements of the Act and the Trust Indenture Act and the
respective rules and regulations thereunder and (ii) such counsel
participated in conferences with officers and representatives of the
Company, representatives of the Subsidiary Guarantors,
PricewaterhouseCoopers LLP, the Underwriters, the Parent and Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in connection with the preparation of the
Registration Statement, and based on the foregoing and without
assuming responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement except as
provided in clause 6(b)(vi) above or making any independent check or
verification thereof (and relying as to factual matters upon the
statements of officers and other representatives of the Company, the
Subsidiary Guarantors, the Parent and others), no facts have come to
the attention of such counsel which lead them to believe that (I) the
Registration Statement, as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading or (II) the Prospectus, as of its
date and as of the Closing Date (and any applicable settlement date),
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that such counsel need
not express a belief as to any financial statements (including pro
forma financial statements and notes to financial statements or pro
forma financial statements) and related schedules, and other
financial, accounting or statistical information included in or
excluded from the Registration Statement or the Prospectus.
18
(c) The Parent shall have requested and caused Dechert, counsel
for the Parent, to have furnished to the Representatives their opinion
dated the Closing Date and addressed to the Representatives, to the
effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Parent;
(ii) no consent, approval, authorization or order of any
Pennsylvania or U.S. Federal court or governmental agency or body
is required for the consummation by the Parent of the
transactions contemplated herein, except (1) such as may have
been obtained under the Act, (2) such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters
in the manner contemplated in this Agreement and in the
Prospectus, as to which such counsel need express no opinion, (3)
such other approvals (specified in such opinion) as have been
obtained and (4) where the failure to obtain such consent,
approval, authorization, or order would not have a material
adverse effect on the issuance and sale of the Securities or the
consummation of any of the other transactions contemplated
herein; and
(iii) neither the issue or sale of the Securities being sold
hereunder nor the consummation of any other of the transactions
contemplated herein by the Parent nor the fulfillment of the
terms hereof by the Parent will (1) conflict with or result in a
breach or violation of the charter or by-laws of the Parent, (2)
result in a material breach or violation of, or the imposition of
any material lien, charge or encumbrance upon any property or
assets of the Parent pursuant to the terms of any material
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument known to such counsel after due
inquiry to which the Parent is a party or bound or to which its
property is subject, or (3) conflict with or violate in any
material respect any Pennsylvania, New York or U.S. Federal
statute, law, rule or regulation applicable to the Parent, or any
judgment, order or decree known to such counsel after due inquiry
to be applicable to the Parent of any court, regulatory body,
administrative agency, governmental body, or arbitrator or other
authority having jurisdiction over the Parent or any of its
properties (other than U.S. Federal or state securities or blue
sky laws, other anti-fraud laws and fraudulent transfer laws and
bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights, as to which such counsel need not express any opinion).
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal law of the United States of
America, the law of the Commonwealth of Pennsylvania and the law of the
State of New York. In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any jurisdiction
other than the Commonwealth of Pennsylvania, the State of New York or
the Federal laws of the United States, to the extent they deem proper
and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be
19
reliable and who are satisfactory to counsel for the Underwriters, and
(B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Parent and public
officials.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, special counsel for the Company and the Parent, to have
furnished to the Representatives an opinion, dated the Closing Date
and addressed to the Representatives, to the effect that the
statements included in the Prospectus under the heading "Our
Business--Intellectual Property," insofar as such statements
constitute a summary of the legal matters or documents referred to
therein, fairly present the information called for with respect to
such legal matters or documents.
(e) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Vice President, Secretary and General Counsel of the
Parent, to have furnished to the Representatives an opinion, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company and the Subsidiary Guarantors has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction in which it
is incorporated, with corporate power and corporate authority to
own or lease, as the case may be, and to operate its properties
and conduct its business as described in the Prospectus, and, in
the case of the Company, is duly qualified to do business as a
foreign corporation and is in good standing under the laws of the
Commonwealth of Pennsylvania;
(ii) the statements included in the Prospectus under the
heading "Our Business--Legal Matters," insofar as such statements
constitute a summary of the legal matters or documents referred
to therein, fairly present the information called for with
respect to such legal matters or documents;
(iii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required for
the consummation by the Parent, the Company or the Subsidiary
Guarantors of the transactions contemplated herein, except (1)
such as have been obtained under the Act, (2) such as may be
required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities
by the Underwriters in the manner contemplated in this Agreement
and in the Prospectus, as to which such counsel need express no
opinion and (3) such other approvals (specified in such opinion)
as have been obtained;
(iv) neither the execution and delivery of the Indenture,
nor the sale of the Securities, nor the consummation of any other
of the transactions contemplated herein nor the fulfillment of
the terms hereof will (1) conflict with or result in a breach or
violation of the charter or by-laws of the Company or the
Subsidiary Guarantors, (2) result in a material breach or
violation of, or the imposition of any material lien, charge or
encumbrance upon any property or assets of the Parent, the
Company, its Subsidiaries or the Subsidiary Guarantors
20
pursuant to the terms of any material indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument
known to such counsel after due inquiry to which the Parent, the
Company, its Subsidiaries or the Subsidiary Guarantors is a party
or bound or to which any of its or their property is subject, or
(3) conflict with or violate in any material respect any
Pennsylvania, New York or U.S. Federal statute, law, rule or
regulation applicable to the Parent, the Company, its
Subsidiaries or the Subsidiary Guarantors, or any judgment or
order applicable to the Parent, the Company, its Subsidiaries or
the Subsidiary Guarantors of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Parent, the Company, its
Subsidiaries or the Subsidiary Guarantors or any of its or their
properties (other than U.S. Federal or state securities or blue
sky laws, other anti-fraud laws and fraudulent transfer laws and
bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights, as to which such counsel need not express any opinion);
and
(v) there is no pending or, to such counsel's knowledge,
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator
involving the Parent, the Company, its Subsidiaries or the
Subsidiary Guarantors or its or their property of a character
required to be disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to
be described in the Registration Statement or the Prospectus, or
to be filed as an exhibit thereto, which is not described or
filed as required.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date
(or the applicable settlement date) to the effect that (i) the
Registration Statement and the Prospectus (other than the financial
statements (including pro forma financial statements and notes to
financial statements or pro forma financial statements) and related
schedules and other financial, accounting or statistical information
included in or excluded from the Registration Statement or the
Prospectus, as to which such counsel need express no belief) appear on
their face to be appropriately responsive in all material respects to
the requirements of the Act and the Trust Indenture Act and the
respective rules and regulations thereunder and (ii) no facts have
come to the attention of such counsel which lead it to believe that
(I) the Registration Statement, as of the Effective Date, contained
any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or (II) the Prospectus, as of its
date and as of the Closing Date (and any applicable settlement date),
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that such counsel need
not express a belief as to any financial statements (including pro
forma financial statements and notes to financial statements or pro
forma financial statements) and related schedules, and other
21
financial, accounting or statistical information included in or
excluded from the Registration Statement or the Prospectus.
In rendering such opinion, such counsel may state that his opinion is
limited to matters governed by the Federal law of the United States of
America and the law of the Commonwealth of Pennsylvania.
(f) The Representatives shall have received from Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Prospectus
(together with any supplement thereto) and other related matters as
the Representatives may reasonably require, and the Company, the
Subsidiary Guarantors and the Parent shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(g) The Company and the Subsidiary Guarantors shall have
furnished to the Representatives a certificate of the Company and each
Subsidiary Guarantor, signed by the Chairman of the Board or the
President, and the principal financial or accounting officer of the
Company, and by an executive officer of each of the Subsidiary
Guarantors dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement,
the Prospectus, any supplements to the Prospectus and this Agreement
and that:
(i) the representations and warranties of the Company and
each Subsidiary Guarantor in this Agreement are true and correct
on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company and each Subsidiary Guarantor
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's or any
Subsidiary Guarantor's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition
(financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(h) The Parent shall have furnished to the Representatives a
certificate, signed by the Chairman of the Board or the President, and
the principal financial or accounting officer of the Parent, dated the
Closing Date, to the effect that the signers of such
22
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Parent in
this Agreement are true and correct on and as of the Closing Date
to the same effect as if made on the Closing Date; and
(ii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition
(financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(i) The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives,
at the Execution Time and at the Closing Date, letters, dated
respectively as of the Execution Time and as of the Closing Date and
addressed to the Representatives, substantially in the form of Exhibit
A.
(j) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(h) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the
direction of the possible change.
(l) On or prior to the Closing Date, the Company shall have (i)
consummated the transactions contemplated under the caption
"Relationship with Crown Cork & Seal Company, Inc." in the Prospectus,
(ii) obtained $150 million of term loans, as described in the
Prospectus, and (iii) entered into a revolving credit facility of at
least $75 million, as described in the Prospectus.
(m) On or prior to the Closing Date, the Parent shall have
completed the Common Stock Offering.
23
(n) The Parent shall have received a written release of the liens
on the Common Stock and the capital stock of the Subsidiaries from the
lenders under the Crown Credit Agreement.
(o) Prior to the Closing Date, the Company and the Subsidiary
Guarantors shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of [Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,] on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
---------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company, the Subsidiary Guarantors or
the Parent to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. on demand
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agree to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
-------- -------
Company will not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based
24
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein; provided further that
----------------
with respect to any untrue statement or omission of material fact made in any
Preliminary Prospectus, the indemnity agreement contained in this Section 8(a)
shall not inure to the benefit of any Underwriter from whom the person asserting
any such loss, claim, damage or liability purchased the securities concerned, to
the extent that any such loss, claim, damage or liability of such Underwriter
occurs under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such person,
(y) the untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Prospectus. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, each person who controls the Company within the meaning
of either the Act or the Exchange Act, to the same extent as the indemnity to
each Underwriter set forth in paragraph (a) of this Section 8, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting," (i) the list of underwriters
and their respective participation in the sale of the Securities, (ii) the
paragraph related to concessions and reallowances, (iii) the paragraphs related
to stabilization, syndicate covering transactions and penalty bids, (iv) the
paragraph related to electronic distribution of any Preliminary Prospectus or
the Prospectus and allocation for electronic distribution of the Securities and
(v) the paragraph related to the assumption by Lazard Freres & Co. LLC (the
"Independent Underwriter") of all responsibilities as a "qualified independent
underwriter" (within the meaning of NASD conduct rule 2720), constitute the only
written information furnished to the Company by or on behalf of the several
Underwriters through the Representatives specifically for inclusion in any
Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) of this Section 8 unless and to the extent
it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) of this Section 8. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's
25
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
-------- -------
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (1) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (2) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (3) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (4) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding. An indemnifying
party shall not be liable under this Section 8 to any indemnified party
regarding any settlement or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent is consented to
by such indemnifying party, which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
--------
however, that in no case shall (i) any Underwriter (except as may be provided in
-------
any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder or (ii) the
Independent Underwriter in its capacity as "qualified independent underwriter"
(within the meaning of National Association of Securities Dealers, Inc. Conduct
Rule 2720) be responsible for any amount in excess of the compensation received
by the Independent Underwriter for acting in such capacity. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one
26
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
the Company, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Prospectus. Benefits received by the Independent
Underwriter in its capacity as "qualified independent underwriter" shall be
deemed to be equal to the compensation received by the Independent Underwriter
for acting in such capacity. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
--- ----
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The liability of the Parent under the Parent's representations and
warranties contained in Section 1 hereof and under the indemnity and
contribution agreements contained in this Section 8 shall be limited to an
amount equal to the initial public offering price of the Securities sold to the
Underwriters, after deducting discounts and commissions received by the
Underwriters. The Company and the Parent may agree, as between themselves and
without limiting the rights of the Underwriters under this Agreement, as to the
respective amounts of such liability for which they each shall be responsible.
(f) Without limitation of and in addition to its obligations under the
other paragraphs of this Section 8, the Company agrees to indemnify and hold
harmless the Independent Underwriter, its directors, officers, employees and
agents and each person who controls Independent Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject, insofar as such losses, claims, damages or liabilities (or
action in respect thereof) arise out of or are based upon Independent
Underwriter's acting as a "qualified independent underwriter" (within the
meaning of National Association of Securities Dealers, Inc. Conduct Rule 2720)
in connection with the offering contemplated by this Agreement, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability results from the gross negligence or willful
misconduct of the Independent Underwriter.
27
(g) In the event that the indemnity and contribution provided in paragraph
(a), (b),(d) or (f) of this Section 8 is unavailable to or insufficient to hold
harmless any Underwriter, any director, officer, employee or agent of any
Underwriter or any person who controls any Underwriter within the meaning of
either the Act or the Exchange Act by reason of the Company having failed to
fulfill in any respect its payment obligations under any such paragraph, the
Parent agrees to indemnify and hold harmless any such indemnified person, or to
contribute to the Losses of any such indemnified person, as the case may be, to
the extent of such unavailability or insufficiency.
9. Default by an Underwriter. If any one or more Underwriters shall fail to
-------------------------
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter, the Company
or the Parent. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement and no action taken under this paragraph shall relieve any defaulting
Underwriter of its liability, if any, to the Company, the Parent and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's common stock shall have been suspended by the
Commission or trading in securities generally on the New York Stock Exchange or
the Nasdaq National Market shall have been suspended or limited or minimum
prices shall have been established on such Exchange or the Nasdaq National
Market, (ii) a banking moratorium shall have been declared either by Federal or
New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers, of the Subsidiary Guarantors or their officers, of the Parent and
of the Underwriters set forth in or
28
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter, the Company, the
Parent or any of the officers, directors, employees, agents or controlling
persons referred to in Section 7(a) hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7, 7(a) and 14 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
-------
only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel; or, if sent to the Company or the Subsidiary Guarantors, will be
mailed, delivered or telefaxed to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and Chief
Executive Officer, Constar International Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, fax (▇▇▇) ▇▇▇-▇▇▇▇ and confirmed to ▇▇▇▇▇▇▇ ▇. Lawlor, Dechert, 4000 ▇▇▇▇
Atlantic Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, fax (▇▇▇) ▇▇▇-▇▇▇▇; or
if sent to the Parent, will be mailed, delivered, telefaxed and confirmed to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Crown, Cork & Seal Company, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, fax (▇▇▇) ▇▇▇-▇▇▇▇ and confirmed to and confirmed to
▇▇▇▇▇▇▇ ▇. Lawlor, Dechert, 4000 ▇▇▇▇ Atlantic Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, fax (▇▇▇) ▇▇▇-▇▇▇▇.
13. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 7(a)
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more counterparts,
------------
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
--------
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
-----------
ave the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
29
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Material Adverse Effect" shall mean any material adverse effect on
the condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto).
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(i)(a) hereof and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in Section 1(i)(a) hereof, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective), and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(i)(a) hereof.
"Subsidiary" shall mean the subsidiaries of the Company listed in
Annex A hereto.
30
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
31
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
Constar International Inc.
By:
---------------------------
Name:
Title:
Crown Cork & Seal Company, Inc.
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
Constar Inc.
By:
---------------------------
Name:
Title:
BFF Inc.
By:
---------------------------
Name:
Title:
DT, Inc.
By:
---------------------------
Name:
Title:
32
Constar Plastics, LLC
By:
---------------------------
Name:
Title:
Constar Foreign Holdings, Inc.
By:
---------------------------
Name:
Title:
33
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
[Name[s] of comanager[s]]
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By:
---------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement
34
SCHEDULE I
----------
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Deutsche Bank Securities Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
---------------
Total ===============
1
ANNEX A: SUBSIDIARIES
---------------------
Entity Jurisdiction of Incorporation
------ -----------------------------
Constar, Inc. ......................................... Pennsylvania
Constar Foreign Holdings, Inc ......................... Delaware
Constar International Holland (Plastics) BV ........... The Netherlands
Constar International UK Ltd. ......................... England
2