Exhibit 5.1
| December 15, 2016 | ||||
T +1 412 355 6500 F +1 412 355 6501 |
Koppers Holdings Inc.
426 Seventh Avenue
Pittsburgh, PA 15219
| Re: | Registration Statement on Form S-3 |
We have acted as counsel to Koppers Holdings Inc., a Pennsylvania corporation (“KH”), and Koppers Inc., a Pennsylvania corporation (“KI”), in connection with the Registration Statement on Form S-3 filed concurrently herewith by KH, KI and the Guarantors (as defined below) with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), on the date hereof (the “Registration Statement”), relating to the issuance and sale, from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, of an indeterminate amount of the following:
| (1) | the debt securities of KH and KI, which may be either senior (the “Senior Debt Securities”) or subordinated (together with the Senior Debt Securities, the “Debt Securities”), and which may be, as to KH’s and KI’s obligations thereunder, fully and unconditionally guaranteed by any one or more of KH, KI and the wholly-owned direct or indirect subsidiaries of KH listed on Schedule I hereto (collectively, the “Guarantors”) (the “Guarantees”); |
| (2) | shares of KH’s common stock, $0.01 par value (the “Common Stock”); |
| (3) | shares of KH’s preferred stock, $0.01 par value (the “Preferred Stock”); |
| (4) | depositary shares (the “Depositary Shares”); |
| (5) | warrants (the “Warrants”); |
| (6) | purchase contracts (the “Purchase Contracts”); |
| (7) | units composed of shares of Common Stock, shares of Preferred Stock, Depositary Shares, Warrants, Debt Securities, Purchase Contracts, or any combination thereof (the “Units”); and |
| (8) | an indeterminate amount of Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Purchase Contracts, Units and Guarantees as may be issued upon settlement, exercise, conversion or exchange of any of the foregoing securities, including such indeterminate amount of such securities as may be issued pursuant to any applicable anti-dilution adjustment (collectively, the “Issuable Securities” and, together with the Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Units and Guarantees, the “Securities”). |
K&L GATES LLP
K&L GATES CENTER 210 SIXTH AVENUE PITTSBURGH PA 15222-2613
T +1 412 355 6500 F +1 412 355 6501 klgates.com
In connection with rendering the opinions set forth below, we have examined (i) the Registration Statement, including the exhibits filed therewith, and the prospectus contained therein (the “Prospectus”); (ii) KH’s Amended and Restated Articles of Incorporation; (iii) KH’s Amended and Restated Bylaws; (iv) the respective certificates or articles of incorporation, certificates of formation or similar organic documents, as applicable, of KI and each of the Guarantors; (v) the respective bylaws, limited liability company agreements or similar organic documents, as applicable, of KI and each of the Guarantors; (vi) resolutions adopted by the respective boards of directors of KH and KI authorizing and providing for the filing of the Registration Statement; and (vii) resolutions adopted by the respective boards of directors or managers or the general partner, as applicable, of each of the other Guarantors authorizing and providing for the filing of the Registration Statement.
For the purposes of this opinion letter, we have assumed that (i) each document submitted to us is accurate and complete; (ii) each such document that is an original is authentic; (iii) each such document that is a copy conforms to an authentic original; and (iv) all signatures on each such document are genuine. We have further assumed the legal capacity of natural persons, and we have assumed that each party to the documents we have examined or relied on (other than KH, KI and each Guarantor) has the legal capacity or authority and has satisfied all legal requirements that are applicable to that party to the extent necessary to make such documents enforceable against that party. We have not verified any of the foregoing assumptions or any other assumptions set forth in this opinion letter.
The opinions expressed in this opinion letter are limited to the laws of the Commonwealth of Pennsylvania and the State of New York. We are not opining on, and we assume no responsibility for, the applicability to or effect on any of the matters covered herein of (i) any other laws; (ii) the laws of any other jurisdiction; or (iii) the law of any county, municipality or other political subdivision or local governmental agency or authority.
Based on the foregoing, and subject to the foregoing and the additional qualifications and other matters set forth below, it is our opinion that:
1. Assuming the terms of any series of Debt Securities offered pursuant to the Registration Statement have been duly established in accordance with each indenture and/or indenture supplement pursuant to which such Debt Securities are to be issued (each, an “Indenture”), when such Debt Securities have been duly executed, authenticated (if required), issued and delivered as contemplated in the Registration Statement and any Prospectus Supplement and in accordance with the applicable Indenture, such Debt Securities will constitute valid and binding obligations of KH or KI, as applicable, enforceable against KH or KI, as applicable, in accordance with their terms.
2. When one or more certificates representing the shares of the Common Stock to be offered pursuant to the Registration Statement, each complying with all applicable requirements of the Pennsylvania Business Corporation Law (the “PBCL”), have been duly executed, authenticated (if required), issued and delivered as contemplated by the Registration Statement and any supplement to the Prospectus relating to such offering (a “Prospectus Supplement”) and in accordance with any agreement or instrument binding upon KH, the Common Stock will be validly issued, fully paid and nonassessable.
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3. When (i) either Articles of Amendment of KH’s Amended and Restated Articles of Incorporation or a Statement with Respect to Shares, in either case fixing and determining the terms of any Preferred Stock to be offered pursuant to the Registration Statement, has been duly filed with the Pennsylvania Department of State and payment in full of any filing fees attendant thereto has been made; and (ii) one or more certificates representing the shares of such Preferred Stock, each complying with all applicable requirements of the PBCL, have been duly executed, authenticated (if required), issued and delivered as contemplated by the Registration Statement and any Prospectus Supplement and in accordance with any agreement or instrument binding upon KH, the Preferred Stock will be validly issued, fully paid and nonassessable.
4. Assuming the terms of any Depositary Shares offered pursuant to the Registration Statement have been duly established in accordance with the applicable deposit agreement (the “Deposit Agreement”), when (i) a depositary has been duly appointed by KH with respect thereto (the “Depositary”); (ii) the shares of Preferred Stock underlying such Depositary Shares have been duly authorized and are validly issued, fully paid and non-assessable as contemplated in numbered paragraph 3 above; (iii) the shares of Preferred Stock underlying such Depositary Shares have been deposited with the Depositary in accordance with the applicable Deposit Agreement; and (iv) the depositary receipts evidencing the Depositary Shares (the “Depositary Receipts”) have been duly executed, countersigned, registered and delivered, as contemplated by the Registration Statement and any Prospectus Supplement and in accordance with the applicable Deposit Agreement and any other agreement or instrument binding upon KH, the Depositary Shares will be validly issued and the depositary receipts evidencing the Depositary Shares will entitle the holders thereof to the rights specified therein and in the applicable Deposit Agreement.
5. Assuming the terms of any Warrants offered pursuant to the Registration Statement have been duly established in accordance with the applicable warrant agreement (the “Warrant Agreement”), when (i) a warrant agent has been duly appointed by KH with respect thereto and (ii) the Warrants or certificates representing the Warrants, as applicable, have been duly executed, authenticated (if required), issued and delivered as contemplated in the Registration Statement and any Prospectus Supplement and in accordance with the terms of the Warrant Agreement and any other agreement or instrument binding upon KH, the Warrants will constitute valid and binding obligations of KH, enforceable against KH in accordance with their terms.
6. Assuming the terms of any Purchase Contracts offered pursuant to the Registration Statement have been duly established in accordance with the applicable purchase contract agreement (the “Purchase Contract Agreement”), when (i) a purchase contract agent has been duly appointed by KH with respect thereto, if required by the terms of the Purchase Contract Agreement, and (ii) the Purchase Contracts have been duly executed, authenticated (if required), issued and delivered as contemplated in the Registration Statement and any Prospectus Supplement and in accordance with the terms of the Purchase Contract Agreement and any other agreement or instrument binding upon KH, the Purchase Contracts will constitute valid and binding obligations of KH, enforceable against KH in accordance with their terms.
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7. Assuming that (a) the combination of the securities of which any Units offered pursuant to the Registration Statement consist has been duly authorized and approved by all necessary action of the board of directors of KH, or a duly authorized committee thereof and (b) the terms of such Units have been duly established in accordance with the applicable unit agreement (the “Unit Agreement”), when (i) a unit agent has been duly appointed by KH with respect thereto, (ii) the Units or certificates representing the Units, as applicable, have been duly executed, authenticated (if required), issued and delivered as contemplated by the Registration Statement and any Prospectus Supplement and in accordance with the applicable Unit Agreement and any other agreement or instrument binding upon KH, (iii) any Debt Securities that form a part of such Units constitute valid and binding obligations of KH or KI, as applicable, enforceable against KH or KI, as applicable, in accordance with their respective terms, as contemplated in numbered paragraph 1 above; (iv) any Warrants that form a part of such Units constitute valid and binding obligations of KH, enforceable against KH in accordance with their respective terms, as contemplated in numbered paragraph 5 above; (v) any Purchase Contracts that form a part of such Units constitute valid and binding obligations of KH, enforceable against KH in accordance with their respective terms, as contemplated in numbered paragraph 6 above; (vi) any Common Stock or Preferred Stock that form a part of such Units are validly issued, fully paid and nonassessable, as contemplated in numbered paragraphs 2 and 3 above, respectively, as applicable; and (vii) any Depositary Shares that form a part of such Units are validly issued and the depositary receipts evidencing the Depositary Shares entitle the holders thereof to the rights specified therein and in the applicable Deposit Agreement, as contemplated in numbered paragraph 4 above, the Units will constitute valid and binding obligations of KH, enforceable against KH in accordance with their terms.
8. Assuming that (i) the terms of the applicable Debt Securities have been duly established in accordance with the applicable Indenture and (ii) the applicable Debt Securities are validly issued and constitute valid and binding obligations of KH or KI, as applicable, enforceable against KH or KI, as applicable, in accordance with their respective terms, as contemplated in numbered paragraph 1 above, the Guarantees will constitute valid and binding obligations of KH, KI or the Guarantors party to the applicable Indenture, as applicable, enforceable against KH, KI or the Guarantors party to the applicable Indenture, as applicable, in accordance with their terms.
9. If, pursuant to the terms thereof, any Issuable Securities are issuable upon settlement, exercise, conversion or exchange of any other Securities offered pursuant to the Registration Statement (the “Initial Securities”) or in accordance with any applicable anti-dilution adjustment, when the Issuable Securities have been issued upon settlement, exercise, conversion or exchange, as applicable, of Initial Securities as contemplated by the Registration Statement and any Prospectus Supplement or Exchange Act Report, in accordance with the terms of the applicable Initial Securities, the Issuable Securities and any agreement or instrument binding upon KH or KI, as applicable, upon such issuance, (i) to the extent the relevant Issuable Securities are Common Stock or Preferred Stock, the Issuable Securities so issued will be duly authorized, validly issued, fully paid and nonassessable, (ii) to the extent the relevant Issuable Securities are Depositary Shares, the Issuable Securities so issued will be validly issued and the depositary receipts evidencing the Issuable Securities will entitle the holders thereof to the rights specified therein and in the applicable Deposit Agreement, and (ii) to the extent the relevant Issuable Securities are Debt Securities, Warrants, Purchase Contracts or Units, such Issuable Securities so issued will constitute valid and binding obligations of KH or KI, as applicable, enforceable against KH or KI, as applicable, in accordance with their terms.
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The opinions set forth above are subject to the following additional assumptions:
(a) The Registration Statement and any amendment thereto (including any post-effective amendment) (i) will have become effective under the Securities Act, and such effectiveness will not have been terminated, suspended or rescinded and (ii) will comply with all applicable laws, in each case at the time the relevant Securities are offered or issued as contemplated by the Registration Statement;
(b) One or more Prospectus Supplements will have been prepared and filed with the SEC describing the Securities offered thereby and will comply with all applicable laws;
(c) All Securities offered pursuant to the Registration Statement will be issued and sold (i) in compliance with all applicable federal and state securities laws, rules and regulations and solely in the manner provided in the Registration Statement and any Prospectus Supplement or free writing prospectus (as defined in Rule 405 under the Securities Act) and (ii) only upon payment of the consideration fixed therefor (which consideration, in the case of any offering of Common Stock or Preferred Stock, including any Common Stock or Preferred Stock included in the Units, shall not be less than the aggregate par value thereof) in accordance with any applicable definitive underwriting, purchase, agency or similar agreement relating to the particular offering, including any amendment or supplement thereto (each a “Purchase Agreement”), and any other applicable agreement relating to the particular offering (including any applicable Indenture, Statement with Respect to Shares or Articles of Amendment of KH’s Amended and Restated Articles of Incorporation, Deposit Agreement, Warrant Agreement, Purchase Contract Agreement, Unit Agreement or other agreement pursuant to which any Securities offered pursuant to the registration statement are to be issued or governed, including any amendment or supplement to any of the foregoing), and there will not have occurred any change in law or fact affecting the validity of any of the opinions rendered herein with respect thereto;
(d) In the case of an Indenture pursuant to which any Debt Securities offered pursuant to the Registration Statement are to be issued or governed, there will have been no addition, deletion or modification of the terms or provisions contained in the form of senior debt indenture included as Exhibit 4.10 to the Registration Statement or the form of subordinated debt indenture included as Exhibit 4.11 to the Registration Statement, as applicable, that would affect the validity of any of the opinions rendered herein;
(e) A definitive Purchase Agreement, any other applicable agreement relating to the particular offering (including any applicable Indenture, Statement with Respect to Shares or Articles of Amendment of KH’s Amended and Restated Articles of Incorporation, Deposit Agreement, Warrant Agreement, Purchase Contract Agreement, Unit Agreement or other agreement pursuant to which any Securities offered pursuant to the Registration Statement are to be issued or governed, including any amendment or supplement to any of the foregoing) and, if applicable, the Securities themselves, will have been duly authorized and approved by all necessary action of the board of directors of KH or KI, as applicable, or a duly authorized committee thereof, or the board of directors or managers or a duly authorized committee thereof, or the general partner of, a Guarantor, as applicable, and duly executed and delivered by KH, KI or the applicable Guarantor, as applicable, and each of the other parties thereto;
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(f) In the case of any Purchase Agreement, Indenture, Statement with Respect to Shares or Articles of Amendment of KH’s Amended and Restated Articles of Incorporation, Deposit Agreement, Warrant Agreement, Purchase Contract Agreement, Unit Agreement or other agreement pursuant to which any Securities offered pursuant to the Registration Statement are to be issued or governed, including any amendment or supplement to any of the foregoing, there shall be no terms or provisions contained therein which would affect the validity of any of the opinions rendered herein;
(g) The final terms of any Securities offered pursuant to the Registration Statement, and, when issued, the issuance, sale and delivery thereof, and the incurrence and performance of the obligations thereunder or in respect thereof in accordance with the terms thereof, and any consideration to be received for any such issuance, sale and delivery, (i) will comply with, and will not violate, (A) in the case of KH, KH’s Amended and Restated Articles of Incorporation and KH’s Amended and Restated Bylaws, as they may be amended or supplemented hereafter, (B) in the case of KI, KI’s Restated and Amended Articles of Incorporation and KI’s Restated and Amended Bylaws, (C) in the case of a Guarantor, the applicable certificate of incorporation, certificate of formation or similar organic document and the applicable bylaws, limited liability company agreement or similar organic document, as they may be amended or supplemented hereafter, or (D) any applicable law, rule or regulation; (ii) will not result in a default under or breach of any agreement or instrument binding upon KH, KI or an applicable Guarantor, as applicable; (iii) will comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over KH, KI or any such Guarantor, as applicable, or to which the issuance, sale and delivery of such Securities or the incurrence and performance of such obligations may be subject; and (iv) will not violate any applicable public policy or be subject to any defense in law or equity;
(h) KH, KI and any applicable Guarantor, as applicable, shall have taken any action required to be taken by KH, KI or such Guarantor, as applicable, based on the type of Security being offered, to authorize the offer and issuance thereof, and such authorization shall remain in effect and unchanged at all times during which the Securities are offered and issued and shall not have been modified or rescinded (subject to the further assumption that the sale of any such Security takes place in accordance with such authorization); the board of directors of KH or KI, as applicable, or a duly authorized committee thereof, or the board of directors or managers or a duly authorized committee thereof, or the general partner of, such Guarantor, as applicable, shall have duly established the terms of such Security and duly authorized and taken any other necessary corporate action to approve the issuance and sale of such Security in conformity with, in the case of KH, KH’s Amended and Restated Articles of Incorporation and KH’s Amended and Restated Bylaws, as they may be amended or supplemented hereafter, in the case of KI, KI’s Restated and Amended Articles of Incorporation and KI’s Restated and Amended Bylaws, and, in the case of a Guarantor, the applicable certificate of incorporation, certificate of formation or similar organic document and the applicable bylaws, limited liability company agreement or similar organic document, as they may be amended or supplemented hereafter (subject to the further assumption that any such organic documents of KH, KI or any such Guarantor have not been amended from the date hereof in a manner that would affect the validity of any of the opinions rendered herein), and such authorization shall remain in effect and unchanged at all times during which such Securities are offered and issued and shall not have been modified or rescinded (subject to the further assumption that the sale of any such Security takes place in accordance with such authorization);
(i) KH shall remain at all times a corporation incorporated under the laws of the Commonwealth of Pennsylvania; and
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(j) The total number of shares of Common Stock and Preferred Stock issued under the Registration Statement, together with all other shares of Common Stock and Preferred Stock issued and outstanding or reserved for issuance, will not exceed the number of shares of Common Stock and Preferred Stock authorized for issuance under KH’s Amended and Restated Articles of Incorporation.
To the extent that the obligations of KH, KI or any Guarantor, as applicable, under any Indenture and any offered Debt Securities may be dependent upon such matters, we assume for purposes of this opinion letter that (i) the applicable financial institution serving as trustee pursuant to the terms of the Indenture (the “Trustee”) will be duly organized, validly existing and in good standing under the laws of its jurisdictions of organization; (ii) the Trustee will be duly qualified to engage in the activities contemplated by the Indenture; (iii) such Indenture and any amendment or supplement thereto will have been duly authorized, executed and delivered by the Trustee and will constitute the valid and binding obligations of the Trustee, enforceable against the Trustee in accordance with its terms; (iv) the Trustee will be in compliance, with respect to acting as a trustee under the Indenture and any amendment or supplement thereto, with all applicable laws and regulations; (v) the Trustee will have the requisite organizational and legal power and authority to perform its obligations under the Indenture and any amendment or supplement thereto; and (vi) the Trustee will have been qualified under the Trust Indenture Act of 1939, as amended, and a Form T-1 shall have been properly filed as an exhibit to the Registration Statement.
To the extent that the obligations of KH, KI or any Guarantor under any Deposit Agreement, Warrant Agreement, Purchase Contract Agreement, Unit Agreement or other agreement pursuant to which any Securities offered pursuant to the Registration Statement are to be issued or governed, including any amendment or supplement thereto, may be dependent upon such matters, we assume for purposes of this opinion letter that (i) each party to any such agreement other than KH, KI and any Guarantor (including any applicable Depositary, warrant agent, purchase contract agent, unit agent or other party acting in a similar capacity with respect to any Securities) will be duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and that each such other party will be duly qualified to engage in the activities contemplated thereby; (ii) each such agreement and the applicable Securities will have been duly authorized, executed and delivered by each such other party and will constitute the valid and binding obligations of each such other party, enforceable against each such other party in accordance with their terms; (iii) each such other party will be in compliance, with respect to acting in any capacity contemplated by any such agreement, with all applicable laws and regulations; and (iv) each such other party will have the requisite organizational and legal power and authority to perform its obligations under each such agreement.
The opinions set forth above are subject to the effects of (a) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights or remedies generally; (b) general principles of equity, regardless of whether such principles are considered in a proceeding at law or in equity; and (c) an implied covenant of good faith, reasonableness, fair dealing and standards of materiality.
We express no opinions concerning (i) any provisions that purport to waive or not give effect to rights to notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law; (ii) any indemnification, exculpation or contribution provisions to the extent that such provisions may be held unenforceable as contrary to public
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policy or federal or state securities laws; (iii) any waiver of the right to jury trial or forum non conveniens; (iv) any provisions relating to choice of governing law to the extent that the enforceability of any such provision is to be determined by any court other than a court of the State of New York or may be subject to constitutional limitations; (v) (a) consents to or restrictions upon judicial relief, (b) waivers of rights or defenses with respect to stay, extension or usury laws or waivers of broadly or vaguely stated rights, (c) grants of set-off rights or (d) proxies, powers and trusts; (vi) any provisions that purport to require that amendments or waivers to any agreement must be in writing to be effective; (vii) any provisions that provide for liquidated damages, make-whole or other prepayment premiums or similar payments or other economic remedies to the extent a court were to determine that any such economic remedy constitutes a penalty; or (viii) any provisions that relate to judgments in currencies other than U.S. dollars. We also express no opinion concerning whether a U.S. federal court would accept jurisdiction in any dispute, action, suit or proceeding arising out of or relating to any agreement or the transactions contemplated thereby or the net impact or result of any conflict of laws between or among laws of competing jurisdictions and the applicability of the law of any jurisdiction in such instance.
We assume no obligation to update or supplement any of our opinions to reflect any changes of law or fact that may occur after the date hereof.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to this firm in the Prospectus under the caption “Legal Matters”. In giving our consent, we do not thereby admit that we are experts with respect to any part of the Registration Statement, the Prospectus or any Prospectus Supplement within the meaning of the term “expert”, as used in Section 11 of the Securities Act or the rules and regulations promulgated thereunder, nor do we admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| Yours truly, |
| /s/ K&L Gates LLP |
| K&L Gates LLP |
| 8 | December 15, 2016 |
SCHEDULE I
Subsidiary | Jurisdiction of Formation | |
Koppers Asia LLC | Delaware | |
Koppers World-Wide Ventures Corporation | Delaware | |
Koppers Concrete Products, Inc. | Delaware | |
Concrete Partners, Inc. | Delaware | |
Koppers Delaware, Inc. | Delaware | |
Koppers Ventures Inc. | Delaware | |
Koppers Performance Chemicals Inc. | New York | |
Koppers-Nevada Limited-Liability Company | Nevada | |
Koppers NZ LLC | New York | |
Koppers Railroad Structures Inc. | Delaware | |
Wood Protection LP | Texas | |
Wood Protection Management LLC | Nevada |
| 9 | December 15, 2016 |