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Exhibit 1.1
[FORM OF UNDERWRITING AGREEMENT]
5,250,000 SHARES
GRAFTECH INC.
COMMON STOCK
UNDERWRITING AGREEMENT
-, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, STEARNS & CO. INC.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
As Representatives of the Several Underwriters
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Ladies & Gentlemen:
1. Introductory. Graftech Inc., a Delaware corporation formerly known as
UCAR Graph-Tech Inc. (the "COMPANY") proposes to issue and sell 650,000 shares
of its Common Stock ("SECURITIES") and UCAR Carbon Company Inc. ("UCAR CARBON"),
a Delaware corporation and a wholly owned subsidiary of UCAR International Inc.,
a Delaware corporation and guarantor under this Agreement ("UCAR
INTERNATIONAL"), proposes to sell 4,600,000 outstanding shares of the Securities
(such 5,250,000 shares of Securities being hereinafter referred to as the "FIRM
SECURITIES"). UCAR Carbon also proposes to sell to the Underwriters, at the
option of the Underwriters, not more than 787,500 additional outstanding shares
of the Company's Securities, as set forth below (such 787,500 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, Credit
Suisse First Boston Corporation (the "DESIGNATED UNDERWRITER") has agreed to
reserve out of the Firm Securities purchased by it under this Agreement, up to
303,000 shares, for sale to directors, officers and employees of UCAR
International and its subsidiaries, including the Company (collectively,
"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.
In connection with the issue and sale of the Offered Securities
contemplated hereby, the Company and UCAR Carbon, and various affiliates of UCAR
Carbon have entered into a series of agreements, the material ones of which have
been described in the Prospectus (as hereinafter defined) under the caption
"Certain Relationships and Related Transactions" and all of which we have listed
herein on Schedule B. Such agreements are hereinafter referred to as the
"Reorganization Agreements."
The Company, UCAR Carbon and UCAR International hereby agree with the
several Underwriters named in Schedule A hereto ("UNDERWRITERS") as follows:
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2. Representations and Warranties of the Company and UCAR Carbon. (a) The
Company and UCAR Carbon jointly and severally represent and warrant to, and
agree with, the several Underwriters that:
(i) A registration statement (No. 333-40746) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and either (A) has been
declared effective under the Securities Act of 1933 ("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 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". The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no such
filing is required) as included in a Registration Statement, is
hereinafter referred to as the "PROSPECTUS". No document has been or will
be prepared or distributed in reliance on Rule 434 under the Act.
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(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 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 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 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, 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 (or, in 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 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 (or, in 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 7(b) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; 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 failure to so
qualify would not have individually or in the aggregate have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or properties of the Company taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(iv) The Company has no subsidiaries.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company, including the Firm Shares offered
by UCAR Carbon, are, and when the Firm Securities offered by the Company
have been delivered and paid for in accordance with this Agreement, such
Firm Securities will be, validly issued, fully paid and nonassessable and
conform to the description thereof contained in the Prospectus; and,
except as set forth in the Stockholder's Agreement dated -, 2000 between
the Company and UCAR Carbon (the "Stockholder's Agreement"), the
stockholders of the Company have no preemptive rights with respect to the
Securities.
(vi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the
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Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
(vii) Other than as set forth in the Stockholder's Agreement there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company 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.
(viii) The Securities have been approved for listing subject to
notice of issuance on The Nasdaq Stock Market's National Market.
(ix) 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 or foreign securities laws.
(xxiii) Each of the Reorganization Agreements has been duly
authorized by the Company and conforms in all material respects to the
description thereof in the Prospectus and constitutes a valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally and (ii) to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(x) The execution, delivery and performance of this Agreement and
the consummation of the transactions herein contemplated by the Company
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, 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 of its
properties, or any agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the properties of the
Company is subject, in each case except where such breach, violation or
default would not have, individually or in the aggregate, a Material
Adverse Effect, or the charter or by-laws of the Company.
(xi) The execution, delivery and performance of the Reorganization
Agreements and the consummation of the transactions therein contemplated
by the Company will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, 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 of its
properties, or any agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the properties of the
Company is subject, or the charter or by-laws of the Company.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiii) Except as disclosed in the Prospectus, the Company has good
and marketable title to (or has valid rights to lease or otherwise use)
all real properties and all other properties and assets owned by it, in
each case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
proposed to be made thereof by it; and except as disclosed in the
Prospectus, the Company holds any leased real or personal property under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or proposed to be made thereof by it, except
to the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of
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general applicability relating to or affecting creditors' rights generally
and (ii) to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xiv) The Company possesses adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by it and has not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company, would individually or in the aggregate have a Material Adverse
Effect.
(xv) No labor dispute with the employees of the Company exists or,
to the knowledge of the Company, is imminent that could reasonably be
expected to have a Material Adverse Effect.
(xvi) The Company owns, possesses[, has the right to use] 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 it, or
presently employed by it, and has not received any notice of infringement
of or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the Company,
would individually or in the aggregate have a Material Adverse Effect.
(xvii) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(xviii) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or any of
its properties that, if determined adversely to the Company, 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 have been threatened or, to the Company's knowledge, are
contemplated.
(xix) The financial statements included in each Registration
Statement and the Prospectus present fairly in all material respect the
financial position of the Company as of the dates shown and its results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
and the assumptions used in preparing the adjusted financial information
included in each Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related
adjustments give appropriate effect to those assumptions, and the as
adjusted columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(xx) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus 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,
except as disclosed in or
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contemplated by the Prospectus, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(xxi) 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 Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(xxii) No offeree of Directed Shares or Participant resides outside
the United States.
(xxiii) Neither the Company nor UCAR Carbon has 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.
(xxiv) The Company has, pursuant to the Reorganization Agreements,
acquired (i) all of the title to (or valid rights to lease or otherwise
use) the properties and other assets (tangible and intangible)
constituting UCAR Carbon's worldwide natural graphite business, in each
case, free and clear of all liens, charges and encumbrances and consistent
with the description of such transfer set forth in the Prospectus.
(b) UCAR Carbon further jointly and severally represent and warrant to,
and agree with, the several Underwriters that:
(i) UCAR Carbon has and on each Closing Date hereinafter mentioned
will have valid and unencumbered title to the Offered Securities to be
delivered by UCAR Carbon on such Closing Date and UCAR Carbon has full
right, power and authority to enter into this Agreement and, in the case
of UCAR Carbon, to sell, assign, transfer and deliver the Offered
Securities to be delivered by UCAR Carbon on such Closing Date hereunder;
and upon the delivery of and payment for the Offered Securities to be
delivered by UCAR Carbon on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by UCAR Carbon on such Closing Date.
(ii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between UCAR Carbon and any person that would
give rise to a valid claim against UCAR Carbon or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
(iii) Each of the Reorganization Agreements has been duly authorized
by UCAR Carbon and each of its subsidiaries (in each case, if such entity
is a party thereto) and conforms in all material respects to the
description thereof in the Prospectus and constitutes a valid and binding
obligation of UCAR Carbon and each of its subsidiaries (in each case, if
such entity is a party thereto) enforceable against each of them in
accordance with its terms, except to the extent that enforcement thereof
may be limited by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally and (ii) to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(iv) The execution, delivery and performance of this Agreement and
compliance with the terms and provisions hereof by UCAR Carbon and each of
its respective subsidiaries (other than the Company) will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
UCAR Carbon any such subsidiary or any of their properties, or any
agreement or instrument to which UCAR Carbon or any such subsidiary is a
party
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or UCAR Carbon or any such subsidiary is bound or to which any of the
properties of UCAR Carbon or any such subsidiary is subject, in each case
except where such breach, violation or default would not have,
individually or in the aggregate, a Material Adverse Effect or the charter
or by-laws of UCAR Carbon or any such subsidiary.
(v) The execution, delivery and performance of the Reorganization
Agreements and compliance with the terms and provisions thereof by UCAR
Carbon, and each of its respective subsidiaries (other than the Company)
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over UCAR Carbon or any such
subsidiary or any of their properties, or any agreement or instrument to
which UCAR Carbon or any such subsidiary is a party or UCAR Carbon or any
such subsidiary is bound or to which any of the properties of UCAR Carbon
or any such subsidiary is subject, in each case except where such breach,
violation or default would not have, individually or in the aggregate, a
Material Adverse Effect or the charter or by-laws of UCAR Carbon or any
such subsidiary.
(vi) UCAR Carbon or its subsidiaries have, pursuant to the
Reorganization Agreements, transferred (i) all of the title to the
properties and other assets (tangible and intangible) constituting UCAR
Carbon's worldwide natural graphite business in each case, free and clear
of all liens, charges and encumbrances and consistent with the description
of such transfer set forth in the Prospectus.
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 UCAR Carbon agree,
severally and not jointly, to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company and UCAR Carbon,
at a purchase price of $ per share, the number of Firm Securities set forth
below the caption "Company" or "UCAR Carbon", as the case may be, and opposite
the name of such Underwriter in Schedule A hereto.
The Company and the Selling Stockholder 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 or
wire transfer to an account at a bank designated by the Company (in the case of
the Offered Securities sold by it) or UCAR Carbon (in the case of the Offered
Securities sold by it) and, in each case acceptable to Credit Suisse First
Boston Corporation ("CSFBC") drawn to the order of in the case of the
Company's 650,000 shares of Firm Securities and in the case of UCAR Carbon's
4,600,000 shares of Firm Securities, at the office of Cravath, Swaine & Moore
at A.M., New York time, on , or at such other time not later than seven
full business days thereafter as CSFBC and the Company determine, such time
being herein referred to as the "FIRST CLOSING DATE". For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), the
First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities for
all the Offered Securities sold pursuant to the offering. The certificates for
the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as CSFBC requests and will be made
available for checking and packaging at the office of Cravath, Swaine & Moore at
least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to UCAR Carbon from time
to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. UCAR Carbon
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
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right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company and
UCAR Carbon.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. UCAR Carbon will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank designated by UCAR Carbon and
acceptable to CSFBC drawn to the order of at the office of Cravath, Swaine &
Moore . The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the office of Cravath, Swaine & Moore at a reasonable time in advance of such
Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company, UCAR Carbon and UCAR International.
(a) The Company agrees with the several Underwriters and UCAR Carbon that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred
as of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b)
on or prior to 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFBC.
(ii) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent; and the
Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
a Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
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(iii) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(iv) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(v) The Company will furnish to the Representatives copies of each
Registration Statement (five of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC reasonably requests. The Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement. All other such
documents shall be so furnished as soon as available. The Company and the
Selling Stockholder will pay the expenses of printing and distributing to
the Underwriters all such documents.
(vi) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
reasonably designates and will continue such qualifications in effect so
long as required for the distribution; provided, however, that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not so qualified or to file a general consent to
service of process in any jurisdiction.
(viii) During the period of three years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as CSFBC
may reasonably request; provided, however, that the requirements of this
paragraph (viii) shall terminate if the Company is no longer subject to
the periodic reporting requirements of the Exchange Act.
(ix) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC, except grants of employee stock options pursuant to the terms of a
Company plan in effect on the date hereof, issuances of Securities
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<PAGE> 10
pursuant to the exercise of such options or the exercise of any other
employee stock options of the Company outstanding on the date hereof.
(b) The Company and UCAR Carbon agree with the several Underwriters that:
(i) The Company and UCAR Carbon agree with the several Underwriters
that the Company and UCAR Carbon will pay all expenses incident to the
performance of the obligations of the Company and UCAR Carbon, as the case
may be, under this Agreement, for any filing fees and other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC reasonably designates and the printing of memoranda
relating thereto, for the filing fee incident to, and the reasonable fees
and disbursements of counsel to the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. (the
"NASD") of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities, for any transfer taxes on the sale by UCAR
Carbon of the Offered Securities to the Underwriters and for expenses
incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Underwriters.
(ii) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required
by the NASD or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. The Designated Underwriter
will notify the Company as to which Participants will need to be so
restricted. The Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time.
(iii) The Company and UCAR Carbon will pay all fees and
disbursements of counsel incurred by the Underwriters in connection with
the Directed Shares Program and stamp duties, similar taxes or duties or
other taxes, if any, incurred by the Underwriters in connection with the
Directed Share Program.
Furthermore, each of the Company and UCAR Carbon covenants with the
Underwriters that it will comply with all applicable securities and other
applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed Shares are offered in connection with the Directed
Share Program.
(c) Each of UCAR International and UCAR Carbon agrees with the several
Underwriters that:
(i) Each of UCAR International and UCAR Carbon agrees for a period
of 180 days after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any shares of Securities or securities
convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or
enter into any swap, hedge or other arrangement that transfers, in whole
or in part, any of the economic consequences of ownership of any shares of
the Securities, whether any such aforementioned transaction is to be
settled by delivery of any shares of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to
make any such offer, sale, pledge or disposition, or to enter into any
such transaction, swap, hedge or other arrangement, without, in each case,
the prior written consent of CSFBC, in each case except for: (1) the sale
or other transfer by UCAR International of all or substantially all the
Securities beneficially owned by it to a third party or a group of third
parties as part of a single transaction or series of related transactions
involving a merger, reorganization, sale, joint venture, restructuring or
other change-of-control of UCAR International or its material businesses
(and for this purpose, the business of the Company shall not constitute a
material business), provided that (a) such transaction is disclosed to
CSFBC in writing and (b) the transferee agrees to be bound in writing by
the terms of this subsection; (2) public
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disclosure by UCAR International either (a) required under Federal
securities laws or the rules of any securities exchange on which UCAR
International securities are listed or (b) in respect of a proposed
distribution by UCAR International of its shares of the Securities to its
stockholders; or (3) pledges under credit facilities of UCAR International
existing on the date hereof or refinancings or replacements thereof,
provided the pledgee agrees to be bound in writing by the terms of this
subsection. Any shares of the Securities received by UCAR International
from the Company will also be subject to this subsection. Any shares of
the Securities acquired by UCAR International in the open market will not
be subject to this subsection. A transfer of shares of the Securities to a
controlled affiliate of UCAR International or UCAR Carbon may be made,
provided the transferee agrees to be bound in writing by the terms of this
subsection.
(d) UCAR Carbon agrees with the several Underwriters that:
(i) UCAR Carbon agrees to deliver to CSFBC, attention: Transactions
Advisory Group on or prior to the First Closing Date a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof).
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and UCAR Carbon herein, to the accuracy of
the statements of Company officers and UCAR Carbon officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling Stockholder
of their obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of KPMG LLP confirming
that they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and stating
to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply
as to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
interim financial statements included in the Registration
Statements;
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(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited interim financial statements included
in the Registration Statements do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited
interim financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of this
Agreement, there was any change in the capital stock or any
increase in total current liabilities or total liabilities of
the Company or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest
income statement included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in net sales or net
operating profit or in the total or per share amounts of net
income;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company, subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of
this Agreement, "REGISTRATION STATEMENTS" shall mean the initial
registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to its Effective Time,
(ii) if the Effective Time of the Initial Registration Statements is prior
to the execution and delivery of this Agreement but the Effective Time of
the Additional Registration Statement is subsequent to such execution and
delivery, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be
filed or as proposed to be amended by the post-effective amendment to be
filed shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall
mean the prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by
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<PAGE> 13
CSFBC. If the Effective Time of the Additional Registration Statement (if
any) is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by CSFBC. If
the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(a)(i) of this Agreement. Prior to such Closing Date, no stop
order suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of UCAR Carbon, the Company or the Representatives,
shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or UCAR
Carbon which, in the judgment of a majority in interest of the
Underwriters including the Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities;
(ii) any downgrading in the rating of any debt securities of the Company
or UCAR Carbon by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company or UCAR Carbon
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company or UCAR Carbon on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Kelley, Drye & Warren LLP, counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; 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, other than those jurisdictions in which failure to so
qualify would not have a Material Adverse Effect (it being
understood that in rendering such opinions as to good standing, such
counsel may rely on certificates and other documents of appropriate
public officials);
(ii) The Offered Securities delivered on such Closing Date and
all other outstanding shares of the Common Stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable and conform in all material respects to the
description thereof contained in the
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<PAGE> 14
Prospectus; and, other than as set forth in the Stockholder's
Agreement, the stockholders of the Company have no preemptive rights
with respect to the Securities;
(iii) Other than the Stockholder's Agreement, there are no
contracts, agreements or understandings known to such counsel
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(iv) 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 Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940;
(v) 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 or
foreign securities laws;
(vi) Based on the advice of the Commission the Initial
Registration Statement was declared effective under the Act as of
the date and time specified in such opinion, the Additional
Registration Statement (if any) was filed and became effective under
the Act as of the date and time (if determinable) specified in such
opinion, the Prospectus either was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein or was included in the Initial
Registration Statement or the Additional Registration Statement (as
the case may be), and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of a Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated
under the Act, and each Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; and
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
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<PAGE> 15
In addition to the matters set forth in the opinion referred to in this
Section 6(d), such opinion shall also include a statement to the effect
that such counsel has participated in conferences with representatives of
the Company, UCAR Carbon and UCAR International, at which conferences the
contents of the documents described below were discussed, and that,
although such counsel assumes no responsibility for the factual accuracy
or completeness thereof (except as stated above), such counsel have no
reason to believe that any part of a Registration Statement or any
amendment thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; or that the Prospectus or any amendment
or supplement thereto, as of its issue date or as of such Closing Date,
contained 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
descriptions in the Registration Statements and Prospectus of statutes,
legal and governmental proceedings and contracts and other documents are
accurate in all material respects and fairly present the information
required to be shown; and such counsel do not know of any legal or
governmental proceedings required to be described in a Registration
Statement or the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as exhibits to a
Registration Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as to the
financial statements or other financial data, or statistical data derived
therefrom, contained in the Registration Statements or the Prospectus, or
the intellectual property matters described in the Prospectus.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Karen G. Narwald, General Counsel for the Company, to the
effect that:
(i) Each of the Reorganization Agreements has been duly
authorized, executed and delivered by the Company and conforms in
all material respects to the description thereof in the Prospectus
and constitutes a valid and binding obligation of the Company
enforceable against it in accordance with its terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights generally and (ii) to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and
(ii) The execution, delivery and performance of this Agreement
and the Reorganization Agreements and the consummation of the
transactions herein or therein contemplated by the Company will not
result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule or any
regulation or, to such counsel's knowledge, any order of any
governmental agency or body or any court having jurisdiction over
the Company or any of its properties, or any agreement or instrument
to which the Company is a party or by which the
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<PAGE> 16
Company is bound or to which any of the properties of the Company is
subject, or the charter or by-laws of the Company.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of James Cartiglia, Esq., Chief Patent Counsel for UCAR
Carbon and its subsidiaries, to the effect that:
(i) There are no legal or governmental proceedings, except
patent office proceedings, pending or threatened against the Company
or its subsidiaries relating to the patents or patent applications
of the Company or its subsidiaries;
(ii) There are no facts that would preclude the Company or its
subsidiaries from having clear title to or a valid license under the
patents and patent applications of the Company other than
prohibitions described in Ballard agreement or that would not have a
Material Adverse Effect;
(iii) There are no grants of any licenses to any third parties
to practice any of the technologies described and claimed in any of
the Company's patents or patent applications other than prohibitions
described in Ballard agreement or that would not have a Material
Adverse Effect;
(iv) To such counsel's knowledge, there is no prior art,
including patents, publications, prior public uses or prior sales or
offers for sale, that would invalidate any of the claims in any of
the Company's patents;
(v) There are no disputes regarding the proper inventors named
on any of the Company's patents or patent applications other than
disputes that would not be material to the Company or its business;
(vi) To such counsel's knowledge, there are no potential or
anticipated allegations likely to be made by any third party of
infringement of any third party patent by the Company other than
disputes that would not be material to the Company or its business;
(vii) To such counsel's knowledge, there are no allegations,
potential allegations, or anticipated allegations made, or which
could have been made, or which may or could be made by the Company
against any third party for infringement of any of the Company's
patents; and
(viii) Such counsel has reviewed the statements under the
headings "Business--Intellectual Property" and "Risk Factors--Our
ability to compete effectively depends on protecting our
intellectual property relating to fuel cell and other emerging
opportunities. Our failure to protect our intellectual
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<PAGE> 17
property rights could adversely affect our future revenue/ growth
and profitability" in the Prospectus (collectively, the
"Statements"), and the Statements are accurate in all material
respects and fairly present the information purported to be
summarized therein and such counsel has independently verified the
completeness of the matters contained in the Statements, insofar as
the Statements involve matters of United States and Foreign
intellectual property law.
(g) The Representatives shall have received an opinion, dated such
Closing Date, of Kelley, Drye & Warren LLP, counsel for UCAR Carbon, to
the effect that:
(i) Each of UCAR Carbon has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware;
(ii) UCAR Carbon had valid and unencumbered title to the
Offered Securities delivered by UCAR Carbon on such Closing Date and
had full right free and clear of any liens, corporate power and
authority to sell, assign, transfer and deliver the Offered
Securities delivered by UCAR Carbon on such Closing Date hereunder;
and, except for liens created by the several Underwriters, the
several Underwriters have acquired valid and unencumbered title to
the Offered Securities purchased by them from UCAR Carbon on such
Closing Date hereunder;
(iii) 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 UCAR Carbon for the consummation
of the transactions contemplated by this Agreement in connection
with the sale of the Offered Securities sold by UCAR Carbon, except
such as have been obtained and made under the Act and such as may be
required under state securities laws;
(iv) 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, any statute, any rule,
regulation or order of any governmental agency or body or any court
having jurisdiction over UCAR Carbon or any of their respective
properties or any agreement or instrument to which UCAR Carbon is a
party or by which UCAR Carbon is bound or to which any of the
properties of UCAR Carbon is subject, or the charter or by-laws of
UCAR Carbon;
(v) This Agreement has been duly authorized, executed and
delivered by UCAR Carbon;
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<PAGE> 18
(vi) Each of the Reorganization Agreements has been duly
authorized by UCAR Carbon and each of its subsidiaries (in each
case, if such entity is a party thereto) and conforms in all
material respects to the description thereof in the Prospectuses and
constitutes a valid and binding obligation of UCAR Carbon and each
of its subsidiaries (in each case, if such entity is a party
thereto) enforceable against each of them in accordance with its
terms, except to the extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights generally and (ii) to general principles
of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) The execution, delivery and performance of the
Reorganization Agreements and compliance with the terms and
provisions hereof and thereof by UCAR Carbon and each of its
subsidiaries will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute,
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over UCAR Carbon or
any such subsidiary or any of their properties, or any agreement or
instrument to which UCAR Carbon or any such subsidiary is a party or
any such party is bound or to which any of the properties of UCAR
Carbon or any such subsidiary is subject, or the charter or by-laws
of UCAR Carbon or any such subsidiary; and
(viii) UCAR Carbon and its Subsidiaries have, pursuant to the
Reorganization Agreements transferred (i) all of the title to (or
valid rights to lease or otherwise use) the properties and other
assets (tangible and intangible) constituting UCAR Carbon's
operations, and, in each case, free and clear of all liens, charges
and encumbrances and consistent with the description set forth in
the Prospectuses.
In rendering such opinion, such counsel may rely as to matters governed by
the laws of any jurisdiction other than the State of New York or the
United States of America on local counsel in such jurisdictions provided
that such counsel shall state that they believe that they believe that
they and the Underwriters are justified in relying on such other counsel.
In rendering such opinion, such counsel may rely, as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible
officers of the Selling Stockholders (as applicable) and public officials
which are furnished to the Underwriters.
(h) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may reasonably require, and the Selling Stockholder and
the Company shall have furnished to such counsel
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<PAGE> 19
such documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(i) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter; and, subsequent
to the date of the most recent financial statements in the Prospectus,
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 except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(j) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of UCAR Carbon in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of UCAR Carbon in this Agreement
are true and correct; UCAR Carbon has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date.
(k) The Representatives shall have received a letter, dated such
Closing Date, of KPMG LLP which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing
Date for the purposes of this subsection.
(l) On or prior to the date of this Agreement, the Representatives
shall have received lockup letters from each of the executive officers and
directors of the Company.
The Company and UCAR Carbon will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder, whether in respect of an
Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company and UCAR Carbon will
jointly and severally indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company and UCAR Carbon will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity
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<PAGE> 20
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 subsection (c) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished copies thereof to such
Underwriter.
The Company and UCAR Carbon jointly and severally agree to indemnify and
hold harmless the Designated Underwriter and each person, if any, who controls
the Designated Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (the "DESIGNATED ENTITIES"),
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) (i) caused
by any untrue statement or alleged untrue statement of a material fact contained
in any material prepared by or with the consent of the Company for distribution
to Participants in connection with the Directed Share Program or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading; (ii) caused by the failure of any Participant to pay for and accept
delivery of Directed Shares that the Participant agreed to purchase; or (iii)
related to, arising out of, or in connection with the Directed Share Program,
other than losses, claims, damages or liabilities (or expenses relating thereto)
that are finally judicially determined to have resulted from the bad faith or
gross negligence of the Designated Entities.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, UCAR Carbon, and their respective directors and officers
and each person, if any, who controls the Company or UCAR Carbon within the
meaning of Section 15 of the Act against any losses, claims, damages or
liabilities to which the Company or UCAR Carbon may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and UCAR Carbon in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by any
Underwriter consists of (i) the following information in the Prospectus
furnished on behalf of each Underwriter: the concession and reallowance figures
appearing in the fourth paragraph under the caption "Underwriting" and the sixth
and fifteenth paragraphs under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section or
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a) or (b) above or Section 9, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above or Section 9. In case any
such action is brought against any indemnified party and it notifies an
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<PAGE> 21
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section or Section 9, as the
case may be, for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. Notwithstanding anything contained herein to the
contrary, if indemnity may be sought pursuant to the last paragraph in Section 7
(a) hereof in respect of such action or proceeding, then in addition to such
separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for the Designated Underwriter for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Act of Section 20 of
the Exchange Act. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such (i) settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and UCAR
Carbon on the one hand and the Underwriters on the other from the offering of
the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and UCAR Carbon on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and UCAR Carbon on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and UCAR Carbon bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, UCAR Carbon or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and UCAR Carbon under this Section or
Section 9 shall be in addition to any liability which the Company and UCAR
Carbon may otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls any Underwriter or the QIU within the
21
<PAGE> 22
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company or
UCAR Carbon within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and UCAR Carbon for the purchase
of such Offered Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholder for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or UCAR Carbon, except as provided in
Section 10 (provided that if such default occurs with respect to Optional
Securities after the First Closing Date, this Agreement will not terminate as to
the Firm Securities or any Optional Securities purchased prior to such
termination). As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
9. Qualified Independent Underwriter. The Company hereby confirms that at
its request Bear, Stearns & Co. Inc. has without compensation acted as
"qualified independent underwriter" (in such capacity, the "QIU") within the
meaning of Rule 2710 of the Conduct Rules of the NASD in connection with the
offering of the Offered Securities. The Company and UCAR Carbon will jointly and
severally indemnify and hold harmless the QIU against any losses, claims,
damages or liabilities, joint or several, to which the QIU may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon the
QIU's acting (or alleged failing to act) as such "qualified independent
underwriter" and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred.
10. UCAR International Guaranty. UCAR International hereby unconditionally
and irrevocably guarantees the indemnity and contribution obligations of the
Company and UCAR Carbon, as detailed in sections 7 and 9 herewith, to each
Underwriter, its partners, directors and officers and each person, if any
controls such Underwriter within the meaning of Section 15 of the Act.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, UCAR Carbon, UCAR International or their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the Company, UCAR
Carbon, UCAR International or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company, UCAR Carbon and UCAR International
shall remain responsible for the expenses to be paid or reimbursed by them
pursuant to Section 5 and the respective obligations of the Company, UCAR
Carbon, UCAR International and the Underwriters pursuant to Section 7 and the
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<PAGE> 23
obligations of the Company, UCAR Carbon and UCAR International pursuant to
Section 9 shall remain in effect, and if any Offered Securities have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(c), the Company, UCAR Carbon and UCAR International will, jointly and
severally, reimburse the Underwriters for all out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by them in connection
with the offering of the Offered Securities.
12. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 11709 Madison Avenue, Lakewood,
OH 44107, Attention: Chief Financial Officer, or, if sent to UCAR Carbon or UCAR
International, will be mailed, delivered or telegraphed and confirmed to it at
UCAR International Inc., 3102 West End Avenue, Suite 1100, Nashville, TN 37203;
Attention: General Counsel; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
14. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company, UCAR Carbon and UCAR International hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company, UCAR
Carbon, UCAR International and the several Underwriters in accordance with its
terms.
Very truly yours,
UCAR CARBON COMPANY INC..
By...............................................
Name:
Title:
GRAFTECH INC.
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<PAGE> 24
By...............................................
Name:
Title:
UCAR INTERNATIONAL INC.
By ..............................................
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR STEARNS & CO. INC
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By................................
[Insert title]
24
<PAGE> 25
SCHEDULE A
<TABLE>
<CAPTION>
NUMBER OF FIRM SECURITIES TOTAL
TO BE SOLD BY NUMBER OF
------------------------- FIRM SECURITIES
UCAR TO BE
UNDERWRITER COMPANY CARBON PURCHASED
----------- ------- ------ ---------
<S> <C> <C> <C>
Credit Suisse First Boston Corporation......
Bear, Stearns & Co. Inc.....................
J.P. Morgan Securities Inc..................
Merrill Lynch, Pierce, Fenner
& Smith Incorporated.....................
Total................................. [650,000] [4,600,000] [5,250,000]
</TABLE>
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<PAGE> 26
SCHEDULE B
1. Transfer Agreement between UCAR Carbon Company Inc. and UCAR Graph-Tech
Inc. dated January 1, 2000.
2. Amendment to Transfer Agreement between UCAR Carbon Company Inc. and UCAR
Graph-Tech Inc. dated February 14, 2000.
3. Corporate Services Agreement between UCAR International Inc. and UCAR
Graph-Tech Inc. dated January 1, 2000.
4. Technical Center Services Agreement between UCAR Carbon Company Inc. and
UCAR Graph-Tech Inc. dated January 1, 2000.
5. Employee Benefits Services and Liabilities Agreement between UCAR Carbon
Company Inc. and UCAR Graph-Tech Inc. dated January 1, 2000.
6. Assumption of the UCAR Carbon Retirement Plan by UCAR Graph-Tech Inc.
dated December 31, 1999.
7. Assumption of UCAR Carbon Savings Plan by UCAR Graph-Tech Inc. dated
December 31, 1999.
8. Tax Allocation Agreement between UCAR International and UCAR Graph-Tech
Inc. dated January 1, 2000.
9. Lease Agreement between UCAR Carbon Company Inc. and UCAR Graph-Tech Inc.
dated January 1, 2000.
10. Export Services Agreement between UCAR Carbon Foreign Sales Corporation
and UCAR Graph-Tech Inc. dated January 1, 2000.
11. Export Distribution & Comm. Agreement between UCAR Graph-Tech Inc. and
UCAR Carbon Foreign Sales Corporation dated January 1, 2000.
12. Intellectual Property Transfer Agreement between UCAR Carbon Tech and UCAR
Graph-Tech Inc. dated December 28, 1999.
13. Non-Assertion of Proprietary Rights Agreement between UCAR International
and UCAR Graph-Tech Inc. dated January 1, 2000.
14. Assignment and Assumption of Technology Contracts between UCAR Carbon
Company Inc. and UCAR Graph-Tech Inc. dated January 1, 2000.
15. Assignment of Improvements between UCAR Carbon Technology Corporation and
UCAR Graph- Tech Inc. dated December 28, 1999.
16. Assignment of Improvements between UCAR Carbon Company Inc. and UCAR
Graph-Tech Inc. dated January 1, 2000.
17. Assignment of Technology between UCAR Carbon Technology Corporation and
UCAR Graph-Tech Inc. dated December 28, 1999.
18. Assignment of Technology between UCAR Carbon Company Inc. and UCAR
Graph-Tech Inc. dated December 31, 1999.
19. Assignment and Assumption of Technology Rights between UCAR Carbon
Technology Corporation and UCAR Graph-Tech Inc. dated December 28, 1999.
20. Copyright Assignment between UCAR Carbon Technology Corporation and UCAR
Graph-Tech Inc. dated December 28, 1999.
21. Copyright Assignment between UCAR Carbon Company Inc. and UCAR Graph-Tech
Inc. dated December 28, 1999.
22. Assignment of U.S. Patents between UCAR Carbon Technology Corporation and
UCAR Graph-Tech Inc. dated December 28, 1999.
23. Assignment of U.S. Patent Applications between UCAR Carbon Technology
Corporation and UCAR Graph-Tech Inc. dated December 28, 1999.
24. Assignment of Jointly owned Patent Application between UCAR Carbon
Technology Corporation and UCAR Graph-Tech Inc. dated December 28, 1999.
25. Assignment of Canadian Patents between UCAR Carbon Technology Corporation
and UCAR Graph-Tech Inc. dated December 28, 1999.
26. Assignment of Canadian Patent Application between UCAR Carbon Technology
Corporation and UCAR Graph-Tech Inc. dated December 28, 1999.
26
<PAGE> 27
27. Assignment of Foreign Patents & Patent Application between UCAR Carbon
Technology Corporation and UCAR Graph-Tech Inc. dated December 28, 1999.
28. United States Trademark Assignment between UCAR Carbon Technology
Corporation and UCAR Graph-Tech Inc. dated December 28, 1999.
29. Foreign Trademark Assignment between UCAR Carbon Technology Corporation
and UCAR Graph-Tech Inc. dated December 28, 1999.
27
<PAGE> 28
EXHIBIT A
-, 2000
Graftech Inc.
11709 Madison Avenue
Lakewood, OH 44107
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, STEARNS & CO. INC.
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
As Representatives of the Several Underwriters
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in the establishment of a public market for the Common Stock, $.01 par value per
share, (the "SECURITIES") of Graftech Inc. (the "COMPANY"), the undersigned
hereby agrees that from the date hereof and until 180 days after the public
offering date set forth on the final prospectus used to sell the Securities (the
"PUBLIC OFFERING DATE") pursuant to the Underwriting Agreement, to which you are
or expect to become a party, the undersigned will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any shares of
Securities or securities convertible into or exchangeable or exercisable for any
shares of Securities, enter into a transaction which would have the same effect,
or enter into any swap, hedge or other arrangement that transfers, in whole or
in part, any of the economic consequences of ownership of any shares of the
Securities, whether any such aforementioned transaction is to be settled by
delivery of any shares of the Securities or such other securities, in cash or
otherwise, or publicly disclose the intention to make any such offer, sale,
pledge or disposition, or to enter into any such transaction, swap, hedge or
other arrangement, without, in each case, the prior written consent of Credit
Suisse First Boston Corporation.
Any shares of the Securities received upon exercise of options granted to
the undersigned will also be subject to this Agreement. Any shares of the
Securities acquired by the undersigned in the public offering or in the open
market will not be subject to this Agreement. A transfer of shares of the
Securities to an affiliate or trust may be made, provided the transferee agrees
to be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
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<PAGE> 29
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void (a) if the Public Offering Date shall not
have occurred on or before 180 days after the date of this Agreement or (b) at
such earlier time as the registration statement in respect of the public
offering is withdrawn.
Very truly yours,
By:______________________________
29
