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EXHIBIT 10.12.1
AMENDMENT 1 TO THE GRAFTECH INC.
SEVERANCE COMPENSATION AGREEMENT
The Severance Compensation Agreement is hereby amended, as of the effective date
set forth therein (the "Effective Date"), in accordance with the following.
Notwithstanding anything contained herein to the contrary, this amendment shall
become null and void if the Effective Date does not occur on or before December
31, 2000.
1. Section 1.a.(ii) is hereby amended to read in entirety as follows:
"(ii) any "person" or "group" within the meaning of Section 13(d) or
14(d)(2) of the Act acquires by proxy or otherwise the right to vote
on any matter or question with respect to 15% or more of the then
outstanding Common Stock or 15% or more of the combined voting power
of the then outstanding voting securities of the Corporation;"
2. Section 1.a.(v) is hereby amended to read in entirety as follows:
"(v) consummation of: (x) a reorganization, restructuring,
recapitalization, reincorporation, merger or consolidation of the
Corporation (a "Business Combination") unless, following such
Business Combination, (a) all or substantially all of the
individuals and entities who were the beneficial owners of the
Common Stock and the voting securities of the Corporation
outstanding immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the
common equity securities and the combined voting power of the voting
securities of the corporation or other entity resulting from such
Business Combination outstanding after such Business Combination
(including, without limitation, a corporation or other entity which
as a result of such Business Combination owns the Corporation or all
or substantially all of the assets of the Corporation or the Company
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership immediately
prior to such Business Combination of outstanding Common Stock and
the combined voting power of the outstanding voting securities of
the Corporation, respectively, (b) no "person" or "group" within the
meaning of Section 13(d) or 14(d)(2) of the Act (excluding (1) any
corporation or other entity resulting from such Business Combination
and (2) any employee benefit plan (or related trust) of the Company
or any corporation or other entity resulting from such Business
Combination) beneficially owns 15% or more of the common equity
securities or 15% or more of the combined voting power of the voting
securities of the corporation or other entity resulting from such
Business Combination outstanding after such Business Combination,
except to the extent that such
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beneficial ownership existed prior to such Business Combination with
respect to the Common Stock and the voting securities of the
Corporation, and (c) at least a majority of the members of the board
of directors (or similar governing body) of the corporation or other
entity resulting from such Business Combination were members of the
Board at the time of the execution of the initial agreement
providing for such Business Combination or at the time of the action
of the Board approving such Business Combination, whichever is
earlier; or (y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Corporation or the Company,
whether held directly or indirectly through one or more subsidiaries
(excluding any pledge, mortgage, grant of security interest,
sale-leaseback or similar transaction, but including any foreclosure
sale), provided, that, for purposes of clauses (v)(x) and (v)(y)
above, the divestiture of less than substantially all of the assets
of the Corporation or the Company in one transaction or a series of
related transactions, whether effected by sale, lease, exchange,
spin-off, sale of stock of or merger or consolidation of a
subsidiary, transfer or otherwise, shall not constitute a Change in
Control of the Corporation."
3. Section 1.a.(III) is hereby amended to read in entirety as follows:
"(III) pursuant to clause (i) or (ii) above, solely because UCAR remains
the beneficial owner of 15% or more of the then outstanding Common
Stock or 15% or more of the then outstanding voting securities of
the Corporation or increases its beneficial ownership thereof; or"
4. Section 1.a.(IV) is hereby amended to read in entirety as follows:
"(IV) pursuant to clause (i) or (ii) above, if a "person" or "group"
acquires 15% or more of the then outstanding Common Stock or 15% or
more of the then outstanding voting securities of the Corporation
from UCAR (including, without limitation, acquisitions by reason of
distributions thereof by UCAR International Inc. to its
stockholders); provided, however, that a "Change in Control" of the
Corporation shall be deemed to occur if thereafter the beneficial
ownership of Common Stock or voting securities of the Corporation by
such "person" or "group" increases by more than 1% of the then
outstanding shares of Common Stock or the then outstanding voting
securities of the Corporation (excluding increases due to
distributions or repurchases of Common Stock or voting securities of
the Corporation by the Company, and similar transactions, which have
not been directly or indirectly proposed or initiated by such
"person" or "group" and excluding increases by such "person" or
"group" which do not result in the percentage of beneficial
ownership thereof by such "person" or "group" exceeding the
percentage of beneficial
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ownership of common stock of UCAR International Inc. by such
"person" or "group" on the Effective Date)."
5. Section 12 is hereby added to read in entirety as follows:
"12. UCAR Severance Compensation Agreement. (1) You shall not, under
any circumstances, receive or be entitled to receive, benefits under both
this Agreement and the UCAR Severance Compensation Agreement ("UCAR
Agreement") with respect to the same transaction or series of related
transactions. You shall receive benefits under whichever of this Agreement or
the UCAR Agreement applies (or most nearly applies) thereto as determined by
UCAR, and hereby waive any and all rights to receive benefits under the
other.
(2) The UCAR Agreement will terminate at the first such time as
UCAR ceases to own or hold, directly or indirectly, a majority of the then
outstanding Common Stock (if, at such time, you are an employee of the
Company).
(3) UCAR shall be a third party beneficiary of the provisions
contained in this Section 12. As such, the provisions contained in this
Section 12 cannot be amended, and provisions inconsistent therewith cannot be
added, without the written consent of UCAR."
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