Baker & McKenzie
Level 39 Rialto
525 Collins Street
Melbourne, Victoria 3000, Australia
ABN 32 266 778 912
Postal address:
G.P.O. Box 2119T
Melbourne VIC 3001, Australia
Tel: +61 3 9617 4200
Fax: +61 3 9614 2103
DX: 334 MELBOURNE VICTORIA
www.bakernet.com
15 March 2004 Our Ref: 411774-v1\TK1
Koppers Inc.
436 Seventh Avenue
PITTSBURGH PA 15219-1800
USA
Dear Ladies and Gentlemen,
Koppers Inc. 9 7/8% Senior Secured Notes due 2013
We have acted as Australian special legal advisors to the Australian Guarantors
in relation to the Exchange Guarantees.
In this opinion:
(a) "Act" means the Securities Act of 1933;
(b) "Australian Guarantor" means each of:
(i) Koppers Investment Subsidiary Pty Ltd, an Australian corporation;
(ii) Koppers Australia Pty Ltd, an Australian corporation;
(iii) Koppers Wood Products Pty Ltd, an Australian corporation;
(iv) Koppers Carbon Material & Chemicals Pty Ltd, an Australian
corporation;
(v) Continental Carbon Australia Pty Ltd, an Australian corporation;
(vi) Koppers Shipping Pty Ltd, an Australian corporation; and
(vii) Koppers Australia Holding Company Pty Ltd, an Australian corporation,
(together, the "Australian Guarantors");
(c) "Board Resolutions" means the resolutions referred to in paragraph
1.1(c)(iii);
(d) "Company" means Koppers Inc.;
(e) "Company Searches" means the searches referred to in paragraph 1.2(a) of
this opinion;
(f) "Court" means any court of any Relevant Jurisdiction;
(g) "Documents" means the Exchange Guarantees;
(h) "Exchange Guarantees" means the Subsidiary Guaranty as defined in, and
forming a part of, the Indenture dated as of October 15, 2003 executed by
each of the Australian Guarantors;
(i) "Exchange Offer" means the exchange offer pursuant to which Exchange
Securities of the Company will be issued under the Indenture in exchange
for a like principal amount of the Company's outstanding 9 7/8% Senior
Secured Notes due 2013;
(j) "Exchange Securities" means $320,000,000 aggregate principal amount of 9
7/8% Senior Secured Notes due 2013, issued or to be issued under the
Exchange Offer;
(k) "Indenture" means the indenture between the Company, the Subsidiaries and
JP Morgan Chase Bank, as Trustee, dated as of October 15, 2003;
(l) "Powers of Attorney" means the powers of attorney referred to in paragraph
1.1(b) of this opinion;
(m) "Registration Statement" means the registration statement on Form S-4 under
the Act, relating to the Exchange Offer;
(n) "Relevant Jurisdictions" means the States of Victoria and New South Wales
and the Commonwealth of Australia and "laws of the Relevant Jurisdictions"
means the laws of Victoria and New South Wales and the federal laws of the
Commonwealth of Australia in force at the time this opinion is given;
(o) "Subsidiaries" means any subsidiary (whether direct or indirect) of the
Company which is party to the Indenture; and
(p) "Trustee" means JPMorgan Chase Bank, as trustee under the Indenture.
This opinion is governed by the laws of the State of Victoria.
We have not examined and make no comment on the Registration Statement.
This opinion is given only on behalf of Baker & McKenzie, Australian offices,
and not on behalf of any other office or associated firm of Baker & McKenzie. In
this opinion, "we", "us", "our" and like expressions should be construed
accordingly.
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1. Documents, searches and jurisdiction
1.1 Documents
We have examined the following documents:
(a) a final draft of the Documents;
(b) executed Powers of Attorney dated 1 October 2003 signed by each of the
Australian Guarantors; and
(c) a certificate of the company secretary of each Australian Guarantor dated
14 October 2003 to which is attached:
(i) a copy of the certificate of registration of that Australian
Guarantor;
(ii) a copy of the Constitution of that Australian Guarantor; and
(iii) written resolutions of directors of that Australian Guarantor held on
1 October 2003, authorising the signing of, among other documents, the
Exchange Guarantees and the Power of Attorney referred to in paragraph
1.1(b),
each certified as a true and correct copy as at the date of the
certificate.
1.2 Searches
We have relied on a search of the information that is available to the public in
extract form at the Melbourne business office of the Australian Securities and
Investments Commission on 12 March 2004 for each Australian Guarantor.
We have not made any other searches for the purpose of giving this opinion.
1.3 Jurisdiction
This opinion relates only to the laws of the Relevant Jurisdictions. We have
made such examination of the laws of the Relevant Jurisdictions as currently
applied by the Courts of the Relevant Jurisdictions as in our judgment is
necessary for the purpose of giving this opinion. We have not investigated the
laws of any other jurisdiction.
2. Assumptions
For the purpose of giving this opinion, we have assumed that:
(a) all documents submitted to us are genuine and complete, and, in the case of
copies or facsimiles of originals, conform to the original documents;
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(b) all documents submitted to us in draft or unexecuted form will be duly
executed in that form;
(c) all seals and signatures and any duty stamp and marking on all documents
examined by us are genuine;
(d) all statements and warranties of facts in all documents on which we have
relied in providing this opinion, and the instructions which we have
received as to all matters of fact, are and continue to be correct and
complete and no relevant matter was withheld from us, whether deliberately
or inadvertently;
(e) all documents submitted to us continue unamended and, other than the
Documents, in full force and effect;
(f) the Documents are within the capacity and power of, and have been duly
authorised, executed and delivered by, all parties to the Documents (other
than the Australian Guarantors);
(g) each Document constitute, or will constitute on execution and delivery by
all parties to the Document, valid and binding obligations on all parties
to the Document under the laws of all jurisdictions including the laws of
the State of New York, United States of America;
(h) the execution and delivery of the Documents and performance of
their obligations under them by:
(i) all parties to the Documents other than the Australian Guarantors will
comply with all applicable laws; and
(ii) the Australian Guarantors will comply with all relevant applicable
laws other than the laws of the Relevant Jurisdictions;
(i) the Board Resolutions:
(i) have been properly passed by all the directors of the Australian
Guarantors entitled to vote on the Board Resolutions and in accordance
with the Corporations Act and correctly record the business of and
resolutions passed by those directors; and
(ii) have not been rescinded, amended, modified or revoked and are in full
force and effect;
(j) in relation to the Board Resolutions, all the directors of the Australian
Guarantors properly performed their statutory, common law and equitable
duties and that all applicable laws of the Relevant Jurisdictions
(including the Corporations Act) or of the constitution of each of the
Australian Guarantors relating to the declaration of directors' interests
(including material personal interests) and the powers of interested
directors to vote were duly observed. However, there is nothing on the face
of the Board Resolutions that would
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lead us to believe otherwise and, in any event, we note that you may rely
on the assumptions specified in section 129 of the Corporations Act unless:
(i) you have actual knowledge that those assumptions are not correct; or
(ii) your connection or relationship with the relevant company is such that
you ought to have known that those assumptions are not correct;
(k) the Powers of Attorney and the Documents have been or will be executed on
behalf of the Australian Guarantors by the persons authorised to execute
them by the Board Resolutions and the Powers of Attorney, as the case
requires, and that the persons attesting the fixing of any seal to the
Powers of Attorney or Documents hold the office they are stated to hold on
the face of the document;
(l) the Powers of Attorney have not been rescinded, amended, modified or
revoked;
(m) no laws other than the laws of the Relevant Jurisdictions affect this
opinion;
(n) the choice of governing law is bona fide and is not unconnected with the
commercial realities of the transactions contemplated by the Documents;
(o) each authorisation, approval, permission or consent required in connection
with the Documents under all relevant laws, other than the laws of the
Relevant Jurisdictions, has been or will be obtained as and when required
and once obtained will be and continue in full force and effect;
(p) the transactions contemplated by the Documents are in the best interests
and for the corporate benefit of the parties to it and for the purpose of
their respective businesses, however in this regard we note that there is
nothing contained in the Board Resolutions which would lead us to conclude
otherwise;
(q) no transaction contemplated by any of the Documents is an insolvent
transaction (within the meaning of section 588FC of the Corporations Act)
or an unfair loan (within the meaning of section 588FD of the Corporations
Act);
(r) none of the parties is, or will be, seeking to achieve any purpose not
apparent from the Documents which might render it illegal or void;
(s) immediately before and after the execution by the Company and the
Australian Guarantors of the Documents to which they are a party, the
Company and the Australian Guarantors were solvent;
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(t) the Exchange Securities will not be offered for subscription or purchase
and no invitations will be issued for subscription or purchase of the
Securities (directly or indirectly) in the Commonwealth of Australia, its
States, Territories or possessions or to residents of Australia;
(u) each authorisation, approval, permission or consent required outside the
Relevant Jurisdictions in connection with the issue of the Exchange
Securities has been or will be obtained in due course as and when required
and when so obtained will be in full force and effect; and
(v) no person entitled to rely on this opinion is aware that any assumption
made by us is not correct.
Where an assumption is stated to be made in this opinion, we have not made any
investigation of the matters the subject of that assumption.
3. Opinion
Based on the assumptions and subject to the qualifications set out in this
opinion, we advise you that in our opinion:
(a) each of the Australian Guarantors has been duly incorporated and is validly
existing as a corporation and is in good standing under the laws of the
Relevant Jurisdictions;
(b) based on the searches referred to in paragraph 1.2, there are no current
orders for the winding up of, or the appointment of a receiver, liquidator
or administrator for, any of the Australian Guarantors;
(c) each of the Australian Guarantors has all requisite corporate power and
authority to execute, deliver and perform all of its obligations under the
Documents to which it is a party, to meet the guarantees (as applicable)
provided for therein and to perform its obligations thereunder, and all
such action has been validly authorised by all necessary corporate
procedures on its part;
(d) the Documents have been duly authorized by each of the Australian
Guarantors; and
(e) a judgment in relation to the Documents given in or by any United States
federal or New York state court of unlimited jurisdiction (a "Superior
Court") against any of the Australian Guarantors may be enforced in the
Courts of the Relevant Jurisdictions, subject to certain conditions listed
below being met without re-examination of the merits of the issue
determined by the proceedings of the Superior Court. In order for the
Courts of the Relevant Jurisdictions to enforce such a judgment, the party
seeking the enforcement must bring a fresh action on the foreign judgment
in an appropriate Court in the Relevant Jurisdictions. The conditions for
the enforcement of such a judgment are:
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(i) the procedural rules (including those relating to jurisdiction and
service of process) for commencement and maintenance of proceedings
before the courts of the Relevant Jurisdictions must be observed. An
Australian Guarantor must have received notice of the proceedings in
sufficient time to enable it to defend the proceedings;
(ii) the judgment given in or by a Superior Court must be final and
conclusive and for a fixed sum of money only. The judgment must have
not only concluded the particular proceedings pending between the
parties but also settled once and for all the controversy between the
parties leading to the proceedings. It must not be subject to
cancellation or variation in later proceedings between the same
parties in the same court;
(iii) the parties to the proceedings of a Superior Court and to the
enforcement proceedings must be identical;
(iv) the Superior Court must have been jurisdictionally competent in
hearing and determining the issue(s) concerned in the judgment under
the Australian rules of private international law. Generally, a
Superior Court is considered jurisdictionally competent if the
defendant to the judgment was physically and personally present within
the jurisdiction of that court, even if that presence was merely
temporary, or if the defendant voluntarily submitted to that court's
jurisdiction. Corporations are subject to the jurisdiction of the
court if their business is carried on at a definite place within the
country of the court;
(v) the judgment of a Superior Court must not be contrary to natural
justice. This requires that each party must have had the opportunity
of presenting its case before an impartial tribunal and each party
must have been given due notice of the proceedings;
(vi) the judgment of a Superior Court must not contravene either its laws
of public policy or the laws of public policy of the Relevant
Jurisdictions and must not be obtained by fraud or a trick;
(vii) the judgment of a Superior Court must not be penal or a judgment of a
revenue debt;
(viii) the Superior Court must not have acted perversely in refusing to
apply the appropriate law;
(ix) there must not have been an earlier judgment in the courts of the
Relevant Jurisdictions between the same parties and concerning the
same issue(s) as involved in the foreign judgment currently sought for
enforcement;
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(x) the rights under the judgment must be vested in the party seeking to
have the judgment enforced;
(xi) the court of the Relevant Jurisdictions where the action on the
foreign judgment is commenced has the option of choosing whether to
apply the foreign rules or the rules of the Relevant Jurisdictions on
limitation periods for the commencement of actions; and
(xii) the Australian Guarantors will not be entitled to raise in such
enforcement proceedings any defence which was raised or could have
been raised in the proceedings at the Superior Court even though it
would have been a complete answer to the claim.
4. Qualifications
Our opinion is subject to the following qualifications:
(a) equitable remedies, such as injunction and specific performance, are
discretionary and may not be awarded by the Courts of the Relevant
Jurisdictions;
(b) we express no opinion as to factual matters other than as expressly set out
herein and (other than as expressly set out herein) we have not made any
independent investigation of applicable facts, but have relied, to the
extent we deemed proper, on the completeness and accuracy of statements as
to factual matters made by the Company or its Subsidiaries (including the
Australian Guarantors), or their respective officers or other
representatives, and we are not aware of any facts inconsistent with them;
(c) we construe the term "validly existing ... and is in good standing" (a
phrase which has no recognised meaning under the laws of the Relevant
Jurisdictions) to mean that, according to our investigations, the relevant
company has been in continuous and unbroken existence since the date of its
incorporation and no action is currently being taken by the Australian
Securities and Investments Commission for striking the company off the
register and dissolving it as defunct, and as far as the Australian
Securities and Investments Commission is aware, the company is not in
liquidation, subject to a compromise or arrangement, no scheme
administrator has been appointed and no receiver or controller of the
company's property has been appointed;
(d) although we believe it to be likely that a Court of a Relevant Jurisdiction
would give, for an obligation due in a currency other than Australian
dollars, a judgment expressed in that other currency, it is not yet clearly
established that this is always the case and it is possible that a Court
would give, for any obligation, a judgment expressed in Australian dollars
converted from that other currency. We express no opinion as to the date on
which or date at
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which a conversion from foreign currency to Australian dollars would be
made for the purposes of any judgment by a Court;
(e) an obligation of a party to pay interest on overdue amounts under any
Document at a rate higher than the rate applying before the amount fell due
may be held to constitute a penalty. If held to constitute a penalty, it
would be unenforceable;
(f) a Court of a Relevant Jurisdiction may require security for costs, security
for the usual undertakings as to damages or indemnities for malicious and
wrongful action or may decline to enforce an agreement on the grounds that
it is contrary to public policy;
(g) a Court of a Relevant Jurisdiction may not give effect to a choice of law
to govern any of the Documents or a submission to jurisdiction if to do so
would be contrary to public policy in the Relevant Jurisdictions;
(h) proceedings before a Court of a Relevant Jurisdiction may be stayed if the
subject of the proceedings is concurrently before any other court or if it
decides that another jurisdiction is a more appropriate forum;
(i) we have relied solely on the Company Searches and the certificates of
registration of the Australian Guarantors referred to in paragraph
1.1(c)(i) to ascertain that:
(i) each of the Australian Guarantors (other than Koppers Australia
Holding Company Pty Ltd) is a company incorporated under the
Corporations Act and is taken to be registered in New South Wales; and
(ii) Koppers Australia Holding Company Pty Ltd is a company incorporated
under the Corporations Act and is taken to be registered in Victoria;
(j) we have relied on the Company Searches to ascertain, among other things:
(i) certain details relating to officeholders in each of the Australian
Guarantors;
(ii) that no receiver, administrator or liquidator has been appointed or
winding up order made for the Australian Guarantors; and
(iii) that there is no notice of any proposed deregistration of any of the
Australian Guarantors.
The records of the Australian Securities and Investments Commission may not
be complete or up to date;
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(k) where an assumption is stated to be made in this opinion we have not made
any independent investigation for matters the subject of that assumption;
and
(l) no party to any Document is listed under regulations made under or pursuant
to the Charter of the United Nations (Anti-terrorism Measures) Regulations
2001.
5. General
This opinion is addressed to you for your benefit and is given at 9am on 15
March 2004 (Melbourne time). This opinion is given in relation to the
transactions contemplated by the Documents and for no other purpose.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Registration Statement and the prospectus forming a part
thereof. Our consent to such reference does not constitute a consent under
Section 7 of the Act and in consenting to such reference we have not certified
any part of the Registration Statement and do not otherwise come within the
categories of persons whose consent is required under Section 7 or under the
rules and regulations of the Securities and Exchange Commission thereunder.
This opinion must not be:
(a) disclosed to any other person, or quoted or referred to in any public
document or filed with any government agency or other person, except for:
(i) any disclosure made after obtaining our written consent; or
(ii) any disclosure to persons who, in the ordinary course of business of a
person who may rely on this opinion, are required to have access to
the opinion on the basis they will make no further disclosure; or
(iii) any disclosure that a person who may rely on this opinion is required
to make by law; or
(b) relied on by any other person or for any other reason without first
obtaining our written consent.
Yours faithfully,
BAKER & MC.KENZIE
Theo Kindynis
Partner
+61 3 9617 4287
theo.kindynis@bakernet.com
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