Exhibit 1
Koppers Holdings
Inc.
Common Stock
FORM OF UNDERWRITING
AGREEMENT
January [ ],
2006
C REDIT S UISSE S ECURITIES (USA) LLC
UBS S ECURITIES LLC
As Representatives of
the Several Underwriters,
c/o Credit
Suisse Securities (USA) LLC,
Eleven
Madison Avenue,
New
York, NY 10010-3629
Dear Sirs:
1. Introductory . Koppers
Holdings Inc., a Pennsylvania corporation (the “
Company ”), proposes to issue and sell 8,700,000
shares of its Common Stock, par value $0.01 per share (the “
Securities ”), and the shareholders listed in
Schedule A hereto (the “ Selling
Shareholders ”) propose severally to sell an aggregate of
1,300,000 outstanding shares of Securities (such 10,000,000 shares
of Securities being hereinafter referred to as the “ Firm
Securities ”), to the Underwriters (as defined below),
for whom Credit Suisse Securities (USA) LLC (“CSS”) and
UBS Securities LLC are acting as representatives (the “
Representatives ”). The Selling Shareholders also
propose to sell to the Underwriters, at the option of the
Underwriters, not more than 1,500,000 additional outstanding shares
of the Company’s Securities, as set forth below (such
1,500,000 additional shares being hereinafter referred to as the
“ Optional Securities ”). The Firm Securities
and the Optional Securities are herein collectively called the
“ Offered Securities ”. As part of the offering
contemplated by this Agreement, CSS (the “ Designated
Underwriter ”) has agreed to reserve out of the Firm
Securities purchased by it under this Agreement up to 500,000
shares, or 5% of the Firm Securities, for sale to the
Company’s directors, officers, employees and other parties
identified by the Company (collectively, the “
Participants ”), as set forth in the Prospectus (as
defined herein) under the heading “Underwriting” (the
“ Directed Share Program ”). The Firm Securities
to be sold by the Designated Underwriter pursuant to the Directed
Share Program (the “ Directed Shares ”) will be
sold by the Designated Underwriter pursuant to this Agreement at
the public offering price. Any Directed Shares not subscribed for
by the end of the business day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in
the Prospectus. The Company and the Selling Shareholders hereby
agree with the several Underwriters named in Schedule B
hereto (“ Underwriters ”) as follows:
2. Representations and Warranties
of the Company and the Selling Shareholders . (a) The
Company represents and warrants to, and agrees with, the several
Underwriters that:
(i) A registration statement
(No. 333-128250) relating to the Offered Securities, including
a form of prospectus, has been filed with the United States
Securities and Exchange Commission (“ Commission
”) and either (A) has been declared effective under the
Securities Act of 1933, as amended (the “ Act
”), and is not proposed to be amended or (B) is proposed
to be amended by amendment or post-effective amendment. If such
registration statement (the “ initial registration
statement ”) has been declared effective, either
(A) an additional registration statement (the “
additional registration statement ”) relating to the
Offered Securities may have been filed with the Commission pursuant
to Rule 462(b) (“ Rule 462(b) ”) under the Act
and, if so filed, has become effective upon filing pursuant to such
Rule and the Offered Securities all have been duly registered under
the Act pursuant to the initial registration statement and, if
applicable, the additional registration statement or (B) such
an additional registration statement is proposed to be filed with
the Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to
amend
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the initial registration statement
or if an additional registration statement has been filed and the
Company does not propose to amend it, and if any post-effective
amendment to either such registration statement has been filed with
the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) (“ Rule 462(c) ”) under the Act or, in
the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, “ Effective Time ”
with respect to the initial registration statement or, if filed
prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has
advised the Representatives that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the
Company has advised the Representatives that it proposes to file an
amendment or post-effective amendment to such registration
statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representatives that it proposes to file
one, “ Effective Time ” with respect to such
additional registration statement means the date and time as of
which such registration statement is filed and becomes effective
pursuant to Rule 462(b). “ Effective Date ” with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective
Time thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part
of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to
Rule 430A(b) (“ Rule 430A(b) ”) under the
Act, is hereinafter referred to as the “ Initial
Registration Statement ”. The additional registration
statement, as amended at its Effective Time, including the contents
of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part
of the additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the “
Additional Registration Statement ”. The Initial
Registration Statement and the Additional Registration Statement
are hereinafter referred to collectively as the “
Registration Statements ” and individually as a
“ Registration Statement ”. “
Registration Statement ” without reference to a time
means the Registration Statement as of its Effective Time. “
Registration Statement ” as of any time means the
initial registration statement and any additional registration
statement in the form then filed with the Commission, including any
amendment thereto and any prospectus deemed or retroactively deemed
to be a part thereof that has not been superseded or modified. For
purposes of the previous sentence, information contained in a form
of prospectus or prospectus supplement that is deemed retroactively
to be a part of the Registration Statement pursuant to Rule 430A
shall be considered to be included in the Registration Statement as
of the time specified in Rule 430A. “ Statutory
Prospectus ” as of any time means the prospectus included
in the Registration Statement immediately prior to that time,
including any prospectus deemed to be a part thereof that has not
been superseded or modified. For purposes of the preceding
sentence, information contained in a form of prospectus that is
deemed retroactively to be a part of the Registration Statement
pursuant to Rule 430A shall be considered to be included in the
Statutory Prospectus as of the actual time that form of prospectus
is filed with the Commission pursuant to Rule 424(b) (“
Rule 424(b) ”) under the Act. “
Prospectus ” means the Statutory Prospectus that
discloses the public offering price and other final terms of the
Offered Securities and otherwise satisfies Section 10(a) of
the Act. “ Issuer Free Writing Prospectus ”
means any “issuer free writing prospectus,” as defined
in Rule 433, relating to the Offered Securities in the form
filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g). “ General Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being specified in a schedule to
this Agreement. “ Limited Use Issuer Free Writing
Prospectus ” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus. “
Applicable Time ” means [ ·
:00 [a/p]m] (Eastern time) on the
date of this Agreement.
(ii) If the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement: (A) on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement
conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission (“ Rules
and Regulations ”) and did not include any untrue
statement of a material fact or
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omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration
Statement conformed or will conform, in all material respects to
the requirements of the Act and the Rules and Regulations and did
not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, and (C) on the date of
this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of
the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, and at each Closing
Date, each Registration Statement and the Prospectus will conform,
in all material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein
or necessary to make the statements therein and in the case of the
Prospectus, in light of the circumstances under which they were
made, not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery
of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all respects to the requirements of the
Act and the Rules and Regulations, neither of such documents will
include any untrue statement of a material fact or will omit to
state any material fact required to be stated therein or necessary
to make the statements therein and in the case of the Prospectus,
in light of the circumstances under which they were made, not
misleading, and no Additional Registration Statement has been or
will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 8(c)
hereof.
(iii) As of the Applicable Time,
neither (a) the General Use Issuer Free Writing Prospectus(es)
issued at or prior to the Applicable Time, the Statutory
Prospectus, and [the documents attached to this Agreement], all
considered together (collectively, the “ General
Disclosure Package ”), nor (b) any individual
Limited Use Issuer Free Writing Prospectus, when considered
together with the General Disclosure Package, included any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from any prospectus included in the Registration Statement or any
Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in Section 8(c)
hereof.
(iv) Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Offered
Securities or until any earlier date that the Company notified or
notifies CSS as described in the next sentence, did not, does not
and will not include any information that conflicted, conflicts or
will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or included or would
include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at
that subsequent time, not misleading, (a) the Company has
promptly notified or will promptly notify the representatives and
(b) the Company has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission. The foregoing
two sentences do not apply to statements in or
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omissions from any Issuer Free
Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
Section 8(c) hereof.
(v) The Company has been duly
incorporated and is an existing corporation in good standing under
the laws of the Commonwealth of Pennsylvania, with corporate power
and authority to own its properties and conduct its business as
described in the General Disclosure Package; and the Company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification except where the failure to be so qualified or in
good standing would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
business, properties, prospects or results of operations of the
Company and its subsidiaries taken as a whole (“ Material
Adverse Effect ”).
(vi) Each subsidiary of the Company
has been duly incorporated or formed and is an existing corporation
or other entity in good standing under the laws of the jurisdiction
of its incorporation or formation, with corporate power and
authority to own its properties and conduct its business as
described in the General Disclosure Package; and each subsidiary of
the Company is duly qualified to do business as a foreign
corporation or other entity in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
the failure to be so qualified or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse
Effect; all of the issued and outstanding capital stock or other
ownership interest of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable;
and the capital stock or other ownership interest of each
subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects other than liens
and encumbrances pursuant to Koppers Inc.’s senior secured
credit facility and senior secured notes. The entities listed on
Schedule C are the only subsidiaries, direct or
indirect, of the Company.
(vii) The Offered Securities and all
other outstanding shares of capital stock of the Company have been
duly authorized and have been (or, in the case of the Offered
Securities, when issued and paid for in accordance with the term of
this Agreement will be) validly issued, fully paid and
nonassessable and conform, in all material respects, to the
description thereof contained in the Prospectus; and the
shareholders of the Company have no preemptive rights with respect
to the Securities.
(viii) As of the date of this
Agreement, the Company has an authorized and outstanding
capitalization as set forth under the heading “Actual”
in the section of the Registration Statement and the Prospectus
entitled “Capitalization” and, as of each Closing Date
hereinafter mentioned, the Company shall have an authorized and
outstanding capitalization as set forth under the heading “As
Adjusted” in the section of the Registration Statement and
the Prospectus entitled “Capitalization”.
(ix) Except as disclosed in the
General Disclosure Package, there are no contracts, agreements or
understandings between the Company or any of its subsidiaries and
any person that would give rise to a valid claim against the
Company, any of its subsidiaries or any Underwriter for a brokerage
commission, finder’s fee or other like payment in connection
with this offering.
(x) Except as disclosed in the
General Disclosure Package, there are no contracts, agreements or
understandings between the Company or any of its subsidiaries and
any person granting such person the right to require the Company or
any of its subsidiaries to file a registration statement under the
Act with respect to any securities of the Company or any of its
subsidiaries or to require the Company or any of its subsidiaries
to include such securities in the securities registered pursuant to
a Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Act.
(xi) The Securities have been
approved for listing subject to notice of issuance on The New York
Stock Exchange.
(xii) No consent, approval,
authorization, or order of, or filing with, any governmental agency
or body or any court is required to be obtained or made by the
Company for the consummation of the transactions contemplated by
this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the
Act and such as may be required under state securities
laws.
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(xiii) The execution, delivery and
performance of this Agreement, and the consummation of the
transactions herein contemplated, will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under (A) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of
the Company or any of their properties, (B) any agreement or
instrument to which the Company or any such subsidiary is a party
or by which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is
subject, or (C) the charter, by-laws or other organizational
document of the Company or any such subsidiary, except in the case
of clause (B), for such breaches, violations or defaults that would
not, individually or in the aggregate, have a Material Adverse
Effect.
(xiv) This Agreement has been duly
authorized, executed and delivered by the Company.
(xv) Except as disclosed in the
General Disclosure Package, the Company and its subsidiaries have
good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the General Disclosure
Package, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to
be made thereof by them.
(xvi) The Company and its
subsidiaries possess adequate certificates, authorities or permits
issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them, except for such
certificates, authorities or permits the lack of which would not,
individually or in the aggregate, have a Material Adverse Effect,
and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit that would, individually or in the aggregate, have a
Material Adverse Effect.
(xvii) No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that would reasonably be
expected to have a Material Adverse Effect.
(xviii) The Company and its
subsidiaries own, possess, or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “ intellectual
property rights ”) necessary to conduct the business now
operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that would, individually or in the aggregate, have a Material
Adverse Effect.
(xix) Except as specifically
disclosed in the General Disclosure Package, the Company and its
subsidiaries and their properties, assets and operations are in
compliance with, and hold all permits, authorizations and approvals
required under, Environmental Laws (as defined below), except to
the extent that failure so to comply or to hold such permits,
authorizations or approvals would not be reasonably expected to,
individually or in the aggregate, have a Material Adverse Effect;
except as disclosed in the General Disclosure Package, there are no
past, present or, to the Company’s knowledge, reasonably
anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the
Company or its subsidiaries under, or to materially interfere with
or prevent compliance by the Company or its subsidiaries with,
Environmental Laws; except as disclosed in the General Disclosure
Package, neither the Company nor any of its subsidiaries
(i) is the subject of any investigation, (ii) has
received any notice or claim, (iii) is a party to or affected
by any pending or threatened action, suit or proceeding,
(iv) is bound by any judgment, decree or order or (v) has
entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or an alleged liability arising
from or relating to any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as
defined below) except as would not, individually or in the
aggregate, if determined adversely, reasonably be expected to have
a Material Adverse Effect (as used herein, “Environmental
Law” means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, order, decree, judgment, injunction,
permit, license, authorization or other binding requirement, or
common law, relating to health,
5
safety or the protection, cleanup or
restoration of the environment or natural resources, including
those relating to the distribution, processing, generation,
treatment, storage, disposal, transportation, other handling or
release or threatened release of, or exposure to, Hazardous
Materials, and “Hazardous Materials” means any material
(including, without limitation, pollutants, contaminants, hazardous
or toxic substances or wastes) that is regulated by or may give
rise to liability under any Environmental Law).
(xx) In the ordinary course of its
business, the Company and each of its subsidiaries conducts a
periodic review of the effect of the Environmental Laws on their
respective business, operations and properties, for the purpose of
identifying and evaluating associated material costs and
liabilities (including, without limitation, any capital or
operating expenditures required for cleanup, other remedial
activities or compliance with the Environmental Laws or any permit,
license or approval issued under Environmental Laws and any
potential liabilities to third parties).
(xxi) Except as disclosed in the
General Disclosure Package, there are no pending actions, suits or
proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that would,
individually or in the aggregate, have a Material Adverse Effect,
or would materially and adversely affect the ability of the Company
to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the
Company’s knowledge, threatened or contemplated.
(xxii) The consolidated financial
statements of the Company included in each Registration Statement
and the General Disclosure Package present fairly in all material
respects the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and, except as otherwise
disclosed in the General Disclosure Package, such financial
statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a
consistent basis; and all disclosures contained in the Registration
Statement or the General Disclosure Package regarding
“non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent
applicable.
(xxiii) Except as disclosed in the
General Disclosure Package, since the date of the latest audited
financial statements included in the General Disclosure Package
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the General
Disclosure Package, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(xxiv) The Company is subject to the
reporting requirements of either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 and files
reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
(xxv) The Company is not and, after
giving effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in the
General Disclosure Package, will not be, an “investment
company” as defined in the Investment Company Act of
1940.
(xxvi) The Company has not offered,
or caused the Underwriters to offer, any Offered Securities to any
person pursuant to the Directed Share Program with the specific
intent to unlawfully influence (i) a customer or supplier of
the Company to alter the customer’s or supplier’s level
or type of business with the Company or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
(xxvii) Ernst & Young LLP,
who have reviewed certain financial statements of the Company and
its consolidated subsidiaries included in each Registration
Statement and 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.
(xxviii) The Company and each of its
subsidiaries makes and keeps accurate books and records and
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorization;
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(ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (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 existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
(xxix) The Company has established
and maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act);
such disclosure controls and procedures are designed to ensure that
material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others
within those entities, and such disclosure controls and procedures
are effective to perform the functions for which they were
established; the Company’s auditors and the Audit Committee
of the Board of Directors have been advised, based on the
Company’s most recent evaluation of such disclosure controls
and procedures, of: (i) any significant deficiencies in the
design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize,
and report financial data; and (ii) any fraud, whether or not
material, that involves management or other employees who have a
role in the Company’s internal controls; any material
weaknesses in internal controls have been identified for the
Company’s auditors; except as disclosed in the Registration
Statement and General Disclosure Package, since the date of the
most recent evaluation of such disclosure controls and procedures,
there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses; and the Company is taking all
necessary actions to ensure that, upon and at all times after
effectiveness of the Registration Statement, except as disclosed in
the Registration Statement and General Disclosure Package, the
Company and its officers and directors, in their capacities as
such, will be in compliance in all material respects with the
provisions of the Sarbanes-Oxley Act of 2002 (the “
Sarbanes-Oxley Act ”) and the rules and regulations
promulgated in connection therewith, including provisions with
respect to “internal control over financial reporting”
(as such term is defined in Rules 13a-15 and 15d-15 under the
Act), which are applicable at such time to the Company.
(xxx) The Company has provided you
true, correct, and complete copies of all documentation pertaining
to any extension of credit in the form of a personal loan made,
directly or indirectly, by the Company to any director or executive
officer of the Company, or to any family member or affiliate of any
director or executive officer of the Company; and since
July 30, 2002, the Company has not, directly or indirectly,
including through any subsidiary: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, in
the form of a personal loan, to or for any director or executive
officer of the Company, or to or for any family member or affiliate
of any director or executive officer of the Company; or
(ii) made any material modification, including any renewal
thereof, to any term of any personal loan to any director or
executive officer of the Company, or any family member or affiliate
of any director or executive officer, which loan was outstanding on
July 30, 2002.
(xxxi) (A) On or before the
date hereof, “lock-up” agreements, each substantially
in the form of Exhibit E hereto (“Lock-Up
Agreements”), relating to sales and certain other
dispositions of shares of Securities or certain other securities,
have been executed and delivered to the Representatives by all
officers and directors of the Company and the shareholders and
option-holders listed on Schedule E as of the date
hereof, and all such agreements are in full force and effect; and
(B) the persons listed on Schedule D hereto are
all of the shareholders, optionholders, officers and directors of
the Company as of the date hereof.
In addition, any certificate signed
by any officer of the Company and delivered to the Underwriters or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed to be a representation and warranty by
the Company or Subsidiary, as the case may be, as to matters
covered thereby, to each Underwriter.
(b) Each Selling Shareholder,
severally and not jointly, represents and warrants to, and agrees
with, the several Underwriters that:
(i) Each Selling Shareholder has and
on each Closing Date hereinafter mentioned will have valid and
unencumbered title to the Offered Securities to be delivered by
such Selling Shareholder on such Closing Date and full right, power
and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Offered Securities to be delivered by such
Selling Shareholder on such Closing Date hereunder; and upon the
delivery of and payment for the Offered Securities on each Closing
Date hereunder the several Underwriters will acquire valid and
unencumbered title to the Offered Securities to be delivered by
such Selling Shareholder on such Closing Date.
7
(ii) If the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement: (A) on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement
conformed in all material respects to the requirements of the Act
and the Rules and Regulations and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all material respects to
the requirements of the Act and the Rules and Regulations did not
include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement
each conforms, and at the time of filing of the Prospectus pursuant
to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and neither
of such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, neither of
such documents will include any untrue statement of a material fact
or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
The two preceding sentences apply only to the extent that any
statements in or omissions from a Registration Statement or the
Prospectus are based on written information furnished to the
Company by such Selling Shareholder specifically for use
therein.
(iii) Except as disclosed in the
Prospectus, there are no contracts, agreements or understandings
between such Selling Shareholder and any person that would give
rise to a valid claim against such Selling Shareholder or any
Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with this offering.
3. Purchase, Sale and Delivery of
Offered Securities . On the basis of the representations,
warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and each Selling
Shareholder agree, severally and not jointly, to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company and each Selling Shareholder,
at a purchase price of
$[ ]
per share, that number of Firm Securities (rounded up or down, as
determined by CSS in its discretion, in order to avoid fractions)
obtained by multiplying 8,700,000 Firm Securities in the case of
the Company and the number of Firm Securities set forth opposite
the name of such Selling Shareholder in Schedule A
hereto, in the case of a Selling Shareholder, in each case by a
fraction the numerator of which is the number of Firm Securities
set forth opposite the name of such Underwriter in
Schedule B hereto and the denominator of which is the
total number of Firm Securities.
The Offered Securities to be sold by
the Selling Shareholders hereunder have been placed in custody, for
delivery under this Agreement, under Custody Agreements made with
[ ],
as custodian (“ Custodian ”). Each Selling
Shareholder agrees that the shares held in custody for the Selling
Shareholders under such Custody Agreements are subject to the
interests of the Underwriters hereunder, that the arrangements made
by the Selling Shareholders for such custody are to that extent
irrevocable, and that the obligations of the Selling Shareholders
hereunder shall not be terminated by operation of law, whether by
the death of any individual Selling Shareholder or the occurrence
of any other event, or in the case of a trust, by the death of any
trustee or trustees or the termination of such trust. If any
individual Selling Shareholder or any such trustee or trustees
should die, or if any other such event should occur, or if any of
such trusts should terminate, before the delivery of the Offered
Securities hereunder, certificates for such Offered Securities
shall be delivered by the Custodian in accordance with the terms
and conditions of this Agreement as if such death or other event or
termination had not occurred, regardless of whether or not the
Custodian shall have received notice of such death or other event
or termination.
The Company and the Custodian will
deliver the Firm Securities to the Representatives for the accounts
of the Underwriters against payment of the purchase price in
Federal (same day) funds by official bank check or
checks
8
or wire transfer to an account at a bank
acceptable to CSS drawn to the order of Koppers Holdings Inc.,
in
