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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 1, 2000
REGISTRATION NO. 333-40746
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GRAFTECH INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 3629 34-1906664
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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11709 MADISON AVENUE
LAKEWOOD, OHIO 44107
(216) 529-3777
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JOHN J. WETULA
CHIEF EXECUTIVE OFFICER AND PRESIDENT
GRAFTECH INC.
11709 MADISON AVENUE
LAKEWOOD, OHIO 44107
(216) 529-3777
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
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M. RIDGWAY BARKER, ESQ. KAREN G. NARWOLD, ESQ. WILLIAM J. WHELAN III, ESQ.
KELLEY DRYE & WARREN LLP GENERAL COUNSEL, VICE CRAVATH, SWAINE & MOORE
TWO STAMFORD PLAZA PRESIDENT AND SECRETARY WORLDWIDE PLAZA
281 TRESSER BOULEVARD GRAFTECH INC. 825 EIGHTH AVENUE
STAMFORD, CONNECTICUT 06901 3102 WEST END AVENUE NEW YORK, NEW YORK 10019
(203) 324-1400 SUITE 1100 (212) 474-1000
NASHVILLE, TENNESSEE 37203
(615) 760-8227
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after this Registration Statement becomes
effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ] --------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] --------
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] --------
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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[Explanatory note: this filing is being made solely for the purpose of refiling
an exhibit to the registration statement. No changes have been made to the
prospectus since the most recent filing.]
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimated,
except the SEC registration fee, the NASD filing fee and the Nasdaq National
Market listing fee.
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SEC registration fee........................................ $ 28,690
NASD filing fee............................................. 11,368
Nasdaq National Market listing fee.......................... 1,000
Printing and engraving expenses............................. 300,000
Legal fees and expenses..................................... 800,000
Accounting fees and expenses................................ 400,000
Blue Sky fees and expenses (including legal fees)........... 10,000
Transfer agent and registrar fees and expenses.............. 10,000
Miscellaneous............................................... 438,942
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Total............................................. $2,000,000
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
We are incorporated under the laws of the State of Delaware. Section 145
("SECTION 145") of the General Corporation Law of the State of Delaware (the
"GENERAL CORPORATION LAW"), inter alia, provides that a Delaware corporation may
indemnify any person who was or is threatened to be made parties to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person is or was an
officer, director, employee or agent of such corporation or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was illegal.
Section 145 further authorizes a Delaware corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of such corporation or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise against any liability asserted against him in any such
capacity, whether or not such corporation would otherwise have the power to
indemnify him under Section 145.
As permitted by Section 102(b)(7) of the General Corporation Law, our
Certificate of Incorporation includes a provision that eliminates the personal
liability of our directors for monetary damages for breach of fiduciary duty as
a director, except for liability:
- for any breach of the director's duty of loyalty to us or our
stockholders,
- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law,
- under Section 174 of the General Corporation Law regarding unlawful
dividends and stock purchases, or
- for any transaction from which the director derived an improper personal
benefit.
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Our Bylaws provide that:
- we must indemnify our directors and officers to the fullest extent
permitted by Delaware law,
- we may indemnify our other employees and agents to the same extent that
we are required to indemnify our officers and directors, unless otherwise
determined by our Board of Directors, and
- we must advance expenses, as incurred, to our directors and officers in
connection with any legal proceeding to the fullest extent permitted by
Delaware law.
As a majority-owned subsidiary of UCAR, our directors, officers and some
key employees will be covered by UCAR's directors' and officers' insurance
policy which provides coverage for directors and officers of UCAR and its
subsidiaries against various claims, losses and liabilities, including
liabilities arising under securities laws. The policy will cover up to $75
million in claims, losses and expenses, including those of our directors,
officers and employees. We will pay a portion of the premium for this policy. In
addition, pursuant to a stockholder's agreement between us and UCAR, we have
agreed to indemnify UCAR against liabilities under the Securities Act, or
contribute to payments which UCAR may be required to make in that respect.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since our incorporation in August 1999, we have issued 29,850,000 shares
(as adjusted for our recent split) of our common stock that were not registered
under the Securities Act in consideration of the net assets of UCAR related to
UCAR's worldwide natural, acid-treated and flexible graphite business which we
received from UCAR. Such issuance was exempt from registration under the
Securities Act pursuant to Section 4(2) because it was a transaction by an
issuer that did not involve a public offering.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
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EXHIBIT
NO. DESCRIPTION
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1.1* Form of Underwriting Agreement among Credit Suisse First
Boston Corporation, Bear, Stearns & Co. Inc., J.P. Morgan
Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as representatives of the several
Underwriters, UCAR International Inc., UCAR Carbon Company
Inc. and Graftech Inc.
3.1* Amended and Restated Certificate of Incorporation of
Graftech Inc.
3.2* Amended and Restated Bylaws of Graftech Inc.
5.1* Opinion of Kelley Drye & Warren LLP (including the consent
of such firm) as to the validity of the securities being
offered.
10.1* Transfer Agreement, dated as of January 1, 2000, between
UCAR Carbon Company Inc. and Graftech Inc.
10.1.1* Amendment No. 1 to Transfer Agreement between UCAR Carbon
Company Inc. and Graftech Inc.
10.1.2* Amendment No. 2 to Transfer Agreement between UCAR Carbon
Company Inc. and Graftech Inc.
10.2* Corporate Services Agreement, dated as of January 1, 2000,
between UCAR Carbon Company Inc. and Graftech Inc.
10.2.1* Amendment No. 1 to Corporate Services Agreement between UCAR
Carbon Company Inc. and Graftech Inc.
10.3* Tax Sharing Agreement, dated as of February 16, 2000,
between UCAR Carbon Company Inc. and Graftech Inc.
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EXHIBIT
NO. DESCRIPTION
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10.4* Lease Agreement, dated as of January 1, 2000, between UCAR
Carbon Company Inc. and Graftech Inc.
10.5* Intellectual Property Transfer Agreement, dated as of
December 28, 1999, between UCAR Carbon Technology
Corporation and Graftech Inc.
10.6** Collaboration Agreement, dated May 3, 1999, between Ballard
Power Systems Inc. and UCAR Carbon Company Inc.
10.7** Supply Agreement, dated as of August 5, 1999, between
Ballard Power Systems Inc. and UCAR Carbon Company Inc.
10.8* Employee Equity Incentive Plan of Graftech Inc.
10.8.1* Amendment No. 1 to Employee Equity Incentive Plan of
Graftech Inc.
10.9* Outside Director Equity Incentive Plan of Graftech Inc.
10.9.1* Amendment No. 1 to Outside Director Equity Incentive Plan of
Graftech Inc.
10.10* Management Incentive Plan of Graftech Inc.
10.11* Form of Employment Agreement between John J. Wetula and
Graftech Inc.
10.12* Form of Severance Compensation Agreement of Graftech Inc.
10.12.1* Form of Amendment No. 1 to form of Severance Compensation
Agreement of Graftech Inc.
10.13* Form of Stockholder's Agreement between UCAR International
Inc. and Graftech Inc.
10.13.1* Form of Amendment No. 1 to form of Stockholder's Agreement
between UCAR International Inc. and Graftech Inc.
10.13.2* Form of Amendment No. 1 to form of Stockholder's Agreement
between UCAR International and Graftech Inc.
10.14*** Memorandum of Understanding, dated April 12, 2000, between
Mazarin Mining Corporation Inc. and Graftech Inc.
10.15* Form of Non-Qualified Stock Option Agreement for Employee
Equity Incentive Plan.
10.16* Form of Non-Qualified Stock Option Agreement for Outside
Director Equity Incentive Plan.
10.17* Assignment Agreement dated May 26, 2000 between UCAR Carbon
Company Inc. and Graftech Inc. relating to equity investment
in share capital of Mazarin Mining Corporation Inc.
23.1* Consent of Kelley Drye & Warren LLP (included in Exhibit
5.1).
23.2* Consent of KPMG LLP.
23.3* Consent of Ballard Power Systems Inc.
23.4* Consent of Charles J. Queenan, Jr.
23.5* Consent of Harold A. Poling.
24.1* Power of Attorney (on the signature page).
27.1* Financial Data Schedule (Annual).
27.2* Financial Data Schedule (Quarterly).
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* Previously filed.
** Previously filed with information omitted. Confidential information has been
requested as to certain portions, and the omitted portions have been
separately filed.
*** Filed herewith with information omitted. Confidential treatment has been
requested as to certain portions, and the omitted portions have been
separately filed.
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(b) FINANCIAL STATEMENT SCHEDULES
All financial statement schedules have been omitted because they are not
required or applicable or because the information is included in the Financial
Statements or the notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant has duly caused this amendment to this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Cleveland, Ohio, on the 1st day of August, 2000.
Graftech Inc.
By: *
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John J. Wetula
Chief Executive Officer and
President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
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SIGNATURES TITLE DATE
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* Chairman of the Board and Director August 1, 2000
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Gilbert E. Playford
* Chief Executive Officer, President August 1, 2000
--------------------------------------------------- and Director (Principal
John J. Wetula Executive Officer)
* Chief Financial Officer and Vice August 1, 2000
--------------------------------------------------- President (Principal Financial
Scott Mason and Accounting Officer)
* Director August 1, 2000
---------------------------------------------------
John Hall
* Director August 1, 2000
---------------------------------------------------
Michael Nahl
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*By: /s/ WILLIAM P'POOL
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William P'Pool,
Attorney-in-fact
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EXHIBIT INDEX
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EXHIBIT
NO. DESCRIPTION
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10.14* Memorandum of Understanding, dated April 12, 2000, between
Mazarin Mining Corporation Inc. and Graftech Inc.
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* Filed herewith with information omitted. Confidential treatment has been
requested as to certain portions, and the omitted portions have been
separately filed.
