[Draft--3/28/97]
6,400,000 Shares
UCAR International Inc.
Common Stock ($0.01 par value)
UNDERWRITING AGREEMENT
April [ ], 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
DILLON, READ & CO. INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
PAINEWEBBER INCORPORATED
THE NIKKO SECURITIES CO. INTERNATIONAL, INC.
c/o CREDIT SUISSE FIRST BOSTON CORPORATION ("CSFBC"),
Eleven Madison Avenue
New York, NY 10010
Dear Sirs:
1. Introductory. Blackstone Capital Partners II Merchant Banking Fund
L.P. ("BCP"), Blackstone Offshore Capital Partners II L.P. ("BOCP") and
Blackstone Family Investment Partnership II L.P. ("BFIP", and together with BCP
and BOCP, the "Selling Stockholders") propose severally to sell (the "U.S.
Offering") to the several underwriters named in Schedule A hereto (the
"Underwriters"), an aggregate of 5,120,000 outstanding shares (the "U.S. Firm
Securities") of the Common Stock, $0.01 par value per share (the "Securities"),
of UCAR International Inc., a Delaware corporation ("UCAR"). The Selling
Stockholders also propose severally to sell to the Underwriters, at the option
of the Underwriters and the Managers (as defined below), an aggregate of not
more than 660,958 additional outstanding Securities (the "Optional Securities")
as set forth below. The U.S. Firm Securities and the Optional Securities that
may be sold to the Underwriters (the "U.S. Optional Securities") are herein
collectively called the "U.S. Securities".
It is understood that UCAR and the Selling Stockholders are concurrently
entering into a Subscription Agreement, dated the date hereof (the "Subscription
Agreement"), with Credit Suisse First Boston (Europe) Limited ("CSFBL") and the
other managers named therein (together with CSFBL, the "Managers"), relating to
the concurrent offering and sale (the "International Offering") by the Selling
Stockholders of an aggregate of 1,280,000 Securities (the "International Firm
Securities", which together with the Optional Securities that may be sold to the
Managers (the "International Optional Securities") are hereinafter called the
"International Securities") outside the United States and Canada. The U.S. Firm
Securities and the International Firm Securities are collectively referred to as
the "Firm Securities". The U.S. Securities and the International Securities are
collectively referred to as the "Offered Securities". To provide for the
coordination of their activities, the Underwriters and the Managers have entered
into an Agreement Between U.S. Underwriters and Managers which permits them,
among other things, to sell the Offered Securities to each other for purposes of
resale.
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2. Representations and Warranties of UCAR and the Selling Stockholders.
(a) UCAR represents and warrants to, and agrees with, the several Underwriters
as of the date hereof and as of each Closing Date (as defined below) that:
(i) A registration statement (No. 333-23073) relating to the Offered
Securities has been filed with the Securities and Exchange Commission (the
"Commission"). The registration statement contains two prospectuses to be
used in connection with the offering and sale of the Offered Securities:
the U.S. prospectus, to be used in connection with the U.S. Offering, and
the international prospectus, to be used in connection with the
International Offering. The international prospectus is identical to the
U.S. prospectus except for the front and back covers, pages 2 and 3, the
information appearing under "Subscription and Sale" on pages 33 to 35 and
"Legal Matters" on page 35 and the deletion of the information under
"Notice to Canadian Residents" on pages 35 to 36 of the U.S. prospectus and
except that certain information has been reordered in the international
prospectus. The registration statement either (A) has been declared
effective under the Securities Act of 1933 (the "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 relating to the Offered Securities (the
"additional registration statement") 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 UCAR does not propose to amend the initial
registration statement or, if an additional registration statement has been
filed and UCAR 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 UCAR has
advised the Underwriters 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 UCAR has advised the Underwriters 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 UCAR has advised the Underwriters 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 material incorporated by reference therein and
including all information (if any) contained in the additional registration
statement 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
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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 U.S.
prospectus, together with the form of international 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, including all
material incorporated by reference in such prospectus, 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.
(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 material respects to the requirements of the Act
and the applicable 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, in light of the circumstances
under which they were made, not misleading, (B) on the Effective Date of
the Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material 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, in light of the circumstances
under which they were made, 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,
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 and 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, 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 Prospectus based upon written
information furnished to UCAR by any Underwriter through CSFBC specifically
for use therein (the "Excluded Information"), and the Underwriters confirm
that the Excluded Information provided by them is correct. The parties
acknowledge and agree that the Excluded Information consists solely of: in
the case of the U.S. prospectus and the Registration Statement, the last
paragraph at the bottom of the front cover page concerning the terms of the
U.S. Offering by the Underwriters, the legend concerning tansactions that
stabilize, maintain or otherwise affect the price of the Securities on the
third page and the information contained in the fifth paragraph, sixth
paragraph, the seventh paragraph, the eighth paragraph, the ninth
paragraph, the twelfth paragraph and the thirteenth paragraph appearing
under the caption Underwriting in the U.S. prospectus.
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(iii) UCAR has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, is
duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification,
except where the failure to so qualify would not have, singularly or in the
aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of UCAR and its
subsidiaries taken as a whole (a "Material Adverse Effect") and has all
corporate power and authority necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged as
described in the Prospectus.
(iv) Each subsidiary of UCAR and EMSA (Pty.) Ltd. ("EMSA") has been
duly incorporated and is validly existing as a corporation in good standing
(or the equivalent, in the case of any foreign subsidiary) under the laws
of the jurisdiction of its incorporation, is duly qualified to do business
and is in good standing (or the equivalent, in the case of any foreign
subsidiary) in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification,
except where the failure to so qualify or be in good standing (or the
equivalent, in the case of any foreign subsidiary) would not have,
singularly or in the aggregate, a Material Adverse Effect and has all
corporate power and authority necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged as
described in the Prospectus.
(v) UCAR has an authorized capitalization as set forth in the
Prospectus, and all of the outstanding shares of capital stock of each of
UCAR, EMSA, Carbographite Limited ("CL") and any direct or indirect
subsidiary of UCAR (each, a "UCAR Group Member" and, collectively, the
"UCAR Group") have been (in the case of each of EMSA and CL, to the extent
of the shares owned directly or indirectly by UCAR) duly and validly
authorized and issued and are fully paid and non-assessable (or the
equivalent thereof under analogous foreign principles of corporate law).
(vi) UCAR owns all the outstanding shares of the capital stock of UCAR
Global Enterprises Inc. ("Global"); and, except as disclosed in the
Prospectus, Global owns, directly or indirectly, (1) all the outstanding
shares of capital stock of each of Global's subsidiaries (other than UCAR
Carbon S.A. and its subsidiaries, in respect of which Global indirectly
owns approximately 94% of the outstanding shares of its capital stock, UCAR
Mexicana, S.A. de C.V. and its subsidiaries in respect of which Global
indirectly owns more than 99% of the outstanding shares of its capital
stock, UCAR Holdings S.A., Itapira Brasil Investimentos E Participacoes
Ltd. and UCAR Limited, as to which qualifying shares totaling less than 1%
are held by nominees, UCAR Grafit OAO ("Grafit"), in respect of which
Global indirectly owns approximately 90% of the outstanding shares of its
capital stock, Carbone Savoie S.A.S. ("Carbone Savoie"), in respect of
which Global indirectly owns 70% of the outstanding shares of its capital
stock, and UCAR Elektroden GmbH ("Elektroden"), in respect of which Global
indirectly owns approximately 70% of the outstanding shares of its capital
stock), and (2) 50% of the outstanding shares of capital stock of EMSA and
CL, in each case, except as disclosed in the Prospectus, free and clear of
any lien, and, except for rights of first refusal on transfers of capital
stock of EMSA, Carbone Savoie, Elektroden and CL, there are no rights
granted to, or in favor of, any person to acquire any such capital stock,
any additional capital stock or any other securities of any such
subsidiary, EMSA or CL.
(vii) Each of this Agreement, the Subscription Agreement and the Stock
Repurchase Agreement dated April [ ], 1997 (the "Stock Repurchase
Agreement"), among UCAR, the Selling Stockholders and Chase Equity
Associates, L.P. has been duly authorized and validly executed and
delivered by UCAR and, assuming due execution and delivery by the other
parties thereto, constitutes a valid and legally binding agreement of UCAR,
enforceable against UCAR in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws affecting creditors' rights
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and remedies generally and to general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in equity).
(viii) The execution, delivery and performance of this Agreement, the
Subscription Agreement and the Stock Repurchase Agreement and the sale of
the Offered Securities and compliance with the terms and provisions hereof
and thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any agreement or
instrument to which UCAR is a party or by which UCAR is bound or to which
any of the properties of UCAR is subject, except where such breach,
violation or default (individually or in the aggregate) would not have a
Material Adverse Effect. UCAR has the corporate power and authority to
execute, deliver and perform this Agreement, the Subscription Agreement and
the Stock Repurchase Agreement.
(ix) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between UCAR and any person granting such
person the right to require UCAR to file a registration statement under the
Act with respect to any securities of UCAR owned or to be owned by such
person or to require UCAR 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 UCAR under
the Act.
(x) KPMG Peat Marwick LLP are independent certified public accountants
with respect to the UCAR Group under Rule 101 of AICPA's Code of
Professional Conduct and its interpretations and rulings. The historical
financial statements (including the related notes) included in the
Prospectus comply in all material respects with the requirements applicable
to a registration statement on Form S-3 and have been prepared, and present
fairly in all material respects the financial position of the UCAR Group at
the respective dates indi cated and the results of its operations and its
cash flows for the respective periods indicated, in accordance with
generally accepted accounting principles consistently applied throughout
such periods except as described in the notes to such financial statements;
and the financial information and financial data set forth (a) in the
Prospectus under the captions "Summary-- Summary Financial and Operating
Data", "Capitalization" and "Selected Consolidated Financial Data", (b) in
Items 6, 8 and 10 of UCAR's Annual Report on Form 10-K for the year ended
December 31, 1996 (the "UCAR 10-K") and (c) in UCAR's Notice of Meeting and
Proxy Statement for the 1996 Annual Meeting of Stockholders (the "UCAR
Proxy") together in each case with the notes applicable thereto, are
derived from the accounting records of the UCAR Group and fairly present in
all material respects the data purported to be shown. The other historical
financial and statistical information and data included in the Prospectus
are, in all material respects, fairly presented.
(xi) There are no pending actions or suits or judicial, arbitral,
rule-making or other administrative or other proceedings to which any UCAR
Group Member is a party or of which any property or assets of any UCAR
Group Member is the subject which, singularly or in the aggregate, are
reasonably likely to have a Material Adverse Effect; and to the best of
UCAR's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(xii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required with respect to
UCAR for the consummation of the transactions contemplated by this
Agreement, the Subscription Agreement or the Stock Repurchase Agreement in
connection with the sale or repurchase of the Offered Securities, except
such as have been obtained and made under the Act and such as may be
required under state securities laws or the requirements of the National
Association of Securities Dealers, Inc. ("NASD").
(xiii) No UCAR Group Member (a) is in violation of its charter, by-laws
or other constituent documents, (b) is in default in any respect, and no
event has occurred which, with
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notice or lapse of time or both, would constitute a default, in the due
performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it is a party or by which it is bound or
to which any of its property or assets is subject or (c) is in violation in
any respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject, except any
violation or default under clauses (b) or (c) that would not have a
Material Adverse Effect.
(xiv) Each UCAR Group Member possesses all material licenses,
certificates, authorizations and permits issued by, and has made all
material declarations and filings with, the appropriate state, federal or
foreign regulatory agencies or bodies which are necessary for the ownership
of its respective properties or the conduct of its respective businesses as
described in the Prospectus, except where the failure to possess or make
the same would not have, singularly or in the aggregate, a Material Adverse
Effect; no UCAR Group Member has received notification of any revocation or
modification of any such material license, authorization or permit; and
each UCAR Group Member reasonably believes that each such material license,
certificate, authorization or permit will be renewed in the ordinary
course.
(xv) Neither UCAR nor Global is, nor, 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 either be, an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations of the Commission
thereunder.
(xvi) Each UCAR Group Member owns or possesses adequate rights to use
all material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of its businesses, has no reason to
believe that the conduct of its businesses will conflict with any such
rights of others which might reasonably be expected to have a Material
Adverse Effect and has not received any notice of any claim of conflict
with any such rights of others which claim has a reasonable basis and, if
successful, could reasonably be expected to have a Material Adverse Effect.
(xvii) Each UCAR Group Member has good and marketable title in fee
simple to, or has valid rights to lease or otherwise use, all items of real
or personal property which are material to its business, in each case
except as disclosed in the Prospectus, free and clear of all liens that can
reasonably be expected to cause a Material Adverse Effect, in each case
except as disclosed in the Prospectus.
(xviii) No labor disturbance or dispute by the employees of any UCAR
Group Member exists or, to the best of UCAR's knowledge, is contemplated,
which could reasonably be expected to have a Material Adverse Effect.
(xix) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of
toxic or other wastes or other hazardous substances by, due to or caused by
any UCAR Group Member (or, to the best of UCAR's knowledge, any other
entity for whose acts or omissions any UCAR Group Member is or may
reasonably be expected to be liable) upon any of the property now or
previously owned or leased by any UCAR Group Member, or upon any other
property, (i) in violation of any applicable statute, ordinance, rule,
regulation, order, judgment, decree or permit or (ii) in a manner which
would, under any applicable statute, ordinance, rule (including rule of
common law), regulation, order, judgment, decree or permit, give rise to
any liability, except in the case of both clauses (i) and (ii) for any
violation or liability which would not have, singularly or in the aggregate
with all such violations and liabilities, a Material Adverse Effect; there
has been no disposal, discharge, emission or other release of
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any kind onto such property or into the environment surrounding such
property of any toxic or other wastes or other hazardous substances with
respect to which UCAR has knowledge, except for any such disposal,
discharge, emission or other release of any kind which would not have,
singularly or in the aggregate with all such disposals, discharges,
emissions and other releases, a Material Adverse Effect.
(xx) Since the date as of which information is given in the Prospectus,
except as otherwise stated therein, (A) there has occurred no event which
has had a Material Adverse Effect or any development that can reasonably be
expected (under current or reasonably anticipated future economic industry
or other relevant conditions) to result in a Material Adverse Effect,
whether or not arising in the ordinary course of business, (B) there have
been no transactions entered into by any UCAR Group Member, other than
those in the ordinary course of business, which are material with respect
to the UCAR Group and (C) there has been no dividend or distribution of any
kind declared, paid or made by UCAR on any class of its capital stock.
(xxi) Other than as contemplated by this Agreement or the Subscription
Agreement or as disclosed in the Prospectus, there is no broker, finder or
other party that is entitled to receive: (a) from UCAR or any of its
subsidiaries any brokerage or finder's fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement, the
Subscription Agreement or the Stock Repurchase Agreement; or (b) from any
Underwriter or Manager or any affiliate thereof any brokerage or finder's
fee or other fee or commission as a result of UCAR or any of its
subsidiaries or, to the best of UCAR's knowledge, any of the Selling
Stockholders entering into any agreement or arrangement relating to, or in
connection with, any of the transactions contemplated by this Agreement,
the Subscription Agreement or the Stock Repurchase Agreement.
(xxii) The Offered Securities and all other outstanding shares of
capital stock of UCAR have been duly authorized; and all outstanding shares
of capital stock of UCAR are validly issued, fully paid and nonassessable
and conform to the description thereof contained in the Prospectus. Except
as disclosed in the Prospectus, the stockholders of UCAR have no preemptive
rights with respect to the Securities.
(xxiii) The Offered Securities are listed on the New York Stock
Exchange.
(xxiv) There are no restrictions contained in any stockholder
agreement, stock option plan or related agreement, subscription agreement
or any similar plan or agreement, relating to the sale of Securities by
existing stockholders of the Company.
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered Securities
to be delivered by or on behalf of such Selling Stockholder on such Closing
Date, and full right, power and authority (as applicable) to enter into
this Agreement, the Subscription Agreement and the Stock Repurchase
Agreement and to sell, assign, transfer and deliver the Offered Securities
to be delivered by or on behalf of such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities to be delivered by or on behalf of such Selling Stockholder on
each such Closing Date hereunder, assuming the several Underwriters acquire
such Offered Securities in good faith and without notice of any adverse
claim within the meaning of the Uniform Commercial Code ("UCC"), the
several Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by or on behalf of such Selling
Stockholder on such Closing Date hereunder.
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(ii) Such Selling Stockholder has been duly organized as a limited
partnership and is in good standing under the laws of the jurisdiction in
which it was organized. Such jurisdictions are the State of Delaware, in
the case of BCP, the Cayman Islands, in the case of BOCP, and the State of
Delaware, in the case of BFIP.
(iii) (A) The Stockholder Information and the Supplemental Stockholder
Information does not contain 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, in light of the circumstances in which they
were made, not misleading, and (B) it is familiar with the Registration
Statement and Prospectus (including, in each case, any amendment or
supplement thereto), and has no knowledge of any untrue statement of a
material fact therein, and has no knowledge of any omission to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were
made, not misleading. The parties acknowledge and agree that "Stockholder
Information" consists solely of: (A) the information in the first paragraph
on front cover of the Prospectus relating to the Retained Interest (as
defined in the Prospectus); (B) the information in the Prospectus under the
caption "Risk Factors--Shares Eligible for Future Sale" concerning the
Retained Interest and resales of Securities included in the Retained
Interest; (C) the biographical information with respect to Peter G.
Peterson ("Peterson"), Stephen A. Schwarzman ("Schwarzman"), Glenn H.
Hutchins ("Hutchins") and Howard A. Lipson ("Lipson") under the caption
"Management" in the Prospectus, under the caption "Election of
Directors--Nominees" in the UCAR Proxy and in Items 10 to 13 inclusive of
the UCAR 10-K, and the information concerning Peterson, Schwarzman,
Hutchins and Lipson in the second paragraph under the caption "Management"
in the Prospectus; (D) the information with respect to beneficial ownership
of Securities by Blackstone Management Associates II LLC, the Selling
Stockholders, Peterson, Schwarzman, Hutchins and Lipson under the caption
"Selling Stockholders" in the Prospectus and under the caption "Election of
Directors--Security Ownership of Management and Certain Beneficial Owners"
in the UCAR Proxy; and (E) the information in the Prospectus under the
caption "Selling Stockholders" relating to the Principal Retained Interest
(as defined in the Prospectus), the Limited Partner Retained Interest (as
defined in the Prospectus) and the Retained Interest. The parties further
acknowledge and agree that "Supplemental Stockholder Information" consists
solely of: (A) the information in the first paragraph on front cover of the
Prospectus relating to the Blackstone Share Repurchase (as defined in the
Prospectus) and (B) the information in the Prospectus under the caption
"Selling Stockholders" relating to the Stockholders' Agreement (as defined
in the Prospectus) and the Stock Repurchase Agreement.
(iv) Each of this Agreement, the Subscription Agreement and the Stock
Repurchase Agreement has been duly authorized and validly executed and
delivered by such Selling Stockholder and, assuming due execution and
delivery by the other parties thereto, constitutes a valid and legally
binding agreement of such Selling Stockholder, enforceable against such
Selling Stockholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity).
(v) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court or arbitrator or by any court
or arbitrator is required to be obtained by such Selling Stockholder for
the consummation of the transactions contemplated by this Agreement, the
Subscription Agreement or the Stock Repurchase Agreement in connection with
the sale of the Securities by such Selling Stockholder, except such as have
been obtained and made under the Act and such as may be required under
state securities laws or the requirements of the NASD, and except such as
have no material effect on the consummation of the transactions
contemplated by this Agreement, the Subscription Agreement or the Stock
Repurchase Agreement.
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(vi) The sale of the Offered Securities, the execution, delivery and
performance of this Agreement, the Subscription Agreement and the Stock
Repurchase Agreement and the consummation of the transactions herein and
therein contemplated and the fulfillment of the terms hereof and thereof,
will not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any material agreement or instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the properties of such Selling
Stockholder is subject, or the agreement of limited partnership or articles
of partnership of such Selling Stockholder, except in each case where such
breach, violation or default has no material effect on the consummation of
the transactions contemplated by this Agreement, the Subscription Agreement
or the Stock Repurchase Agreement, and such Selling Stockholder has full
partnership power and authority to sell the Securities to be sold by it as
contemplated by this Agreement, the Subscription Agreement or the Stock
Repurchase Agreement, respectively.
(vii) The sale of the relevant Offered Securities by such Selling
Stockholder, the execution, delivery and performance of this Agreement, the
Subscription Agreement and the Stock Repurchase Agreement by such Selling
Stockholder and the consummation by such Selling Stockholder of the
transactions herein and therein contemplated and the fulfillment by such
Selling Stockholder of the terms hereof and thereof, will not result in a
breach or violation of any of the terms and provisions of any statute or
any rule, regulation or order applicable to such Selling Stockholder of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over such Selling Stockholder or any of its properties.
(viii) Other than as contemplated by this Agreement or the
Subscription Agreement or as disclosed in the Prospectus, such Selling
Stockholder has not agreed with any broker, finder or other party that any
such party is entitled to receive from such Selling Stockholder or any of
its subsidiaries any brokerage or finder's fee or other fee or commission
as a result of any of the transactions contemplated by this Agreement, the
Subscription Agreement or the Stock Repurchase Agreement; nor, to such
Selling Stockholder's knowledge, without independent inquiry, is there any
broker, finder or other party that is entitled to receive from any
Underwriter or Manager or any affiliate thereof any brokerage or finder's
fee or other fee or commission as a result of such Selling Stockholder or
any of its subsidiaries or UCAR or any of its subsidiaries entering into
any agreement or arrangement relating to, or in connection with, any of the
transactions contemplated by this Agreement, the Subscription Agreement or
the Stock Repurchase Agreement.
(ix) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of UCAR to facilitate the sale or resale of the Offered Securities
and has not effected any purchases or sales of Securities, except as
disclosed in the Prospectus and as contemplated by this Agreement or the
Subscription Agreement.
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, each Selling Stockholder agrees,
severally and not jointly, to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a purchase price of $[ ] per share, that number of U.S. Firm Securities (rounded
up or down, as determined by CSFBC in its discretion, in order to avoid
fractions) obtained by multiplying the number of U.S. Firm Securities set forth
opposite the name of such Selling Stockholder in Schedule B hereto by a fraction
the numerator of which is the number of U.S. Firm Securities set forth opposite
the name of such Underwriter in Schedule A hereto and the denominator of which
is the total number of U.S. Firm Securities.
10
Each of the Selling Stockholders will deliver the U.S. Firm Securities
to be sold by it to CSFBC for the accounts of the Underwriters, against payment
of the purchase price by certified or official bank check or checks in Federal
(same-day) funds or by wire transfer to an account previously designated to
CSFBC at a bank acceptable to CSFBC drawn in the proper amounts to the
respective order of each of the Selling Stockholders, at the office of Cravath,
Swaine & Moore ("Underwriters' Counsel"), at 10:00 A.M., New York time, on April
[ ], 1997, or at such other time not later than seven full business days
thereafter as CSFBC, UCAR and the Selling Stockholders determine, such time
being herein referred to as the "First Closing Date". For purposes of Rule
15c6-1 under the Exchange Act, the First Closing Date (if later than the
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 U.S. Firm Securities so to be delivered will
be in definitive form, in such denominations and registered in such names as
CSFBC requests upon reasonable notice and will be made available for checking
and packaging at the above office of Underwriters' Counsel at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from CSFBC given to UCAR and BCP from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters and the Managers may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the U.S. Firm
Securities. Each of the Selling Stockholders agrees, severally and not jointly,
to sell to the Underwriters the respective numbers of Optional Securities
obtained by multiplying the number of Optional Securities specified in such
notice by a fraction the numerator of which is the number of shares set forth
opposite the Selling Stockholders' respective names in Schedule B hereto under
the caption "Number of U.S. Optional Securities to be Sold" and the denominator
of which is the total number of Optional Securities (subject to adjustment by
CSFBC to eliminate fractions). Such U.S. Optional Securities shall be purchased
from the Selling Stockholders for the account of each Underwriter in the same
proportion as the number of U.S. Firm Securities set forth opposite such
Underwriter's name bears to the total number of U.S. 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 U.S. Firm Securities. No Optional Securities shall be sold
or delivered unless the U.S. Firm Securities and the International Firm
Securities previously have been, or simultaneously are, sold and delivered. The
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 UCAR and BCP.
Each time for the delivery of and payment for the U.S. 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, unless it is the First Closing Date, be not later than seven or
sooner than three full business days after written notice of election to
purchase Optional Securities is given. Each of the Selling Stockholders will
deliver the U.S. Optional Securities being purchased from it on each Optional
Closing Date to CSFBC for the accounts of the several Underwriters, against
payment of the purchase price therefor by certified or official bank check or
checks in Federal (same-day) funds or by wire transfer to an account previously
designated to CSFBC at a bank acceptable to CSFBC drawn in the proper amounts to
the respective order of each of the Selling Stockholders at the office of
Underwriters' Counsel. The certificates for the U.S. 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 Underwriters' Counsel at a reasonable
time in advance of such Optional Closing Date.
None of the Selling Stockholders shall be obligated to deliver any Firm
Securities or any Optional Securities to be purchased from it except upon
payment for all the Firm Securities and, if applicable, Optional Securities to
be purchased from it on the relevant Closing Date.
11
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the U.S. Securities for sale to the public as set
forth in the U.S. prospectus.
5. Certain Agreements of UCAR and the Selling Stockholders.
(a) UCAR agrees with the several Underwriters and the Selling
Stockholders that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, UCAR 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. UCAR 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, UCAR 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) UCAR will advise CSFBC and the Selling Stockholders promptly of
any proposal to amend or supplement 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 (which
shall not be unreasonably withheld) or without giving the Underwriters a
reasonable opportunity to comment thereon; UCAR will also advise CSFBC and
the Selling Stockholders 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 commercially reasonable best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(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, UCAR shall promptly notify
CSFBC and the Selling Stockholders 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), UCAR 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
and Rule 158 thereunder. 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
12
that, if such fourth fiscal quarter is the last quarter of UCAR's fiscal
year, "Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(v) UCAR will furnish to the Underwriters 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 U.S. prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as CSFBC reasonably requests. The
Prospectus shall be so furnished on or prior to 10:00 A.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. UCAR
will pay the expenses of printing and distributing to the Underwriters all
such documents.
(vi) UCAR will cooperate with the Underwriters and Underwriters'
Counsel to 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, that in no event shall UCAR be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(vii) During the period of five years hereafter: (x) UCAR will furnish
to the Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and (y)
UCAR will furnish to the Underwriters (i) as soon as available, a copy of
each report or definitive proxy statement of UCAR filed with the Commission
under the Exchange Act or mailed to stockholders and (ii) from time to
time, such other information concerning UCAR as CSFBC may reasonably
request, provided that the requirements of this paragraph (a)(vii) shall
terminate if UCAR is no longer subject to the periodic reporting
requirements of the Exchange Act.
(viii) UCAR will pay all expenses incident to the performance of its
obligations under this Agreement and the Subscription Agreement, including
the cost of printing documents (including the Registration Statement and
Prospectus), and will reimburse the Underwriters for any filing fees and
other expenses (including reasonable fees and disbursements of counsel)
incurred by them in connection with qualification of the Offered Securities
for sale under the laws described in Section 5(a)(vi) and the printing of
memoranda relating thereto, for the filing fee of the NASD relating to the
Offered Securities, for any travel expenses of UCAR's officers and
employees and any other expenses of UCAR in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities and
for expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(ix) For a period of 90 days after the date of commencement of the
public offering of the Offered Securities, UCAR will not offer, sell,
contract to sell, announce its intention to sell, pledge, hypothecate,
grant any option to purchase or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Act (other than on Form S-8 or Form S-3 (but only relating to resales of
securities as described in the general instructions to Form S-8) and other
than those filed in connection with an acquisition permitted by clause (iv)
below) relating to, any additional Securities or securities convertible
into or exchangeable or exercisable for Securities, or publicly disclose
the intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC, except (i) sales and issuances
of Securities pursuant to the UCAR Carbon Savings Plan (which is described
in Note 14 to UCAR's Consolidated Financial Statements included in the
Prospectus), (ii) grants of employee stock options and other awards
pursuant to the terms of a plan in effect on the date hereof or described
in the Prospectus, (iii) sales and
13
issuances of Securities pursuant to the exercise of such options or awards
or the exercise of any other employee stock options or awards outstanding
on the date hereof and (iv) sales and issuances of Securities in connection
with the acquisitions of businesses, companies or assets by a member of the
UCAR Group so long as the recipients of such shares are subject to the
restrictions of this Section 5(a)(ix) until the expiration of such 90 day
period.
(b) Each of the Selling Stockholders severally agrees with the several
Underwriters that for a period of 45 days after the date of commencement of the
public offering of the Offered Securities, such Selling Stockholder will not
offer, sell, contract to sell, announce its intention to sell, pledge,
hypothecate, grant any option to purchase or otherwise dispose of, directly or
indirectly, any additional Securities or any securities convertible into or
exchangeable or exercisable for Securities (including without limitation,
Securities beneficially owned by such Selling Stockholder in accordance with the
Rules and Regulations, other than those beneficially owned by any other Selling
Stockholder), or publicly disclose the intention to make any such offer, sale,
pledge or disposition, without the prior written consent of CSFBC, except that
each of the Selling Stockholders may transfer or otherwise distribute any of the
Securities owned by it on the date hereof to its general partners or limited
partners, provided that each such general partner or limited partner agrees in
writing to be bound by the provisions of this subsection (b) as if such partner
were a Selling Stockholder hereunder.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the U.S. Firm Securities on the
First Closing Date and to purchase and pay for the U.S. Optional Securities on
each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of UCAR and the Selling Stockholders
herein, to the accuracy of the certificates of UCAR officers and Selling
Stockholders delivered pursuant to the provisions hereof, to the performance by
UCAR and the Selling Stockholders of their respective obligations hereunder and
to the following additional conditions precedent:
(a) The Underwriters 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 Statements to be filed
shortly prior to such Effective Time), of KPMG Peat Marwick LLP confirming
that they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and stating
in effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of UCAR, inquiries of officials of UCAR who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) at the date of the latest available balance sheet read
by such accountants, and at a subsequent specified date not more
than three business days prior to the date of delivery of such
letter, there was any change in the capital stock or any increase
in consolidated short-term indebtedness or long-term debt of UCAR
and its subsidiaries or any decreases in consolidated net current
assets (working capital) or stockholders' equity, as compared
with amounts shown on the latest balance sheet included in the
Prospectus; or
14
(B) for the period from the closing date of the latest
income statement 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 consolidated net sales, consolidated income
before extraordinary items or net income; except in all cases set
forth in clauses (A) and (B) above for changes, increases or
decreases which are described in such letter; and
(iii) 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 UCAR and its
subsidiaries subject to the internal controls of UCAR'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. All financial statements included
in material incorporated by reference into the Prospectus shall be
deemed included in the Registration Statements for purposes of this
subsection.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement 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 Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration 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 12:00 P.M., New York time, on April [ ],
1997, or such later date as shall have been consented to by 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 any Selling Stockholder, UCAR or the Underwriters, shall be
contemplated by the Commission. Copies of the Prospectus shall have been
printed and distributed to the Underwriters in such numbers as they may
reasonably request as soon as practicable on or following the date of this
Agreement.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of the Securities, this Agreement, the
Subscription Agreement, the Stock Repurchase Agreement and the Registration
Statements, and all other legal matters relating to this Agreement, the
Subscription Agreement, the Stock Repurchase Agreement and the other
transactions contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to the Underwriters, and UCAR and the
Selling Stockholders shall have
15
furnished to the Underwriters all documents and information that they or
their counsel may reasonably request to enable them to pass upon such
matters.
(d) Kelley Drye & Warren LLP shall have furnished to the Underwriters
their written opinion, as counsel to UCAR, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably satisfactory
to CSFBC, on behalf of the Underwriters, to the effect that:
(i) UCAR has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification
(other than those jurisdictions in which the failure to so qualify
would not have a Material Adverse Effect), and has all corporate power
and authority necessary to own or hold its properties and to conduct
the businesses in which it is engaged (in rendering such opinions as
to good standing, such counsel may rely on certificates and other
documents of public officials of Delaware and Connecticut);
(ii) UCAR's authorized capital stock is as set forth in the
Prospectus; the capital stock of UCAR conforms in all material
respects to the description thereof included in the Prospectus;
(iii) the Offered Securities have been duly authorized and are
validly issued, fully paid and non-assessable; and the stockholders of
UCAR have no pre-emptive rights with respect to the Offered
Securities;
(iv) the descriptions in the Registration Statements and the
Prospectus of statutes (insofar as they relate, to the knowledge of
such counsel, to the business the UCAR Group), legal or governmental
actions, suits, proceedings and contracts and other docu ments insofar
as they purport to constitute summaries of such legal or governmental
actions, suits, proceedings and contracts or other documents,
constitute accurate summaries thereof in all material respects;
(v) the statements in the Registration Statements and the
Prospectus under the caption "Certain United States Tax Consequences
to Non-United States Holders", to the extent that they constitute
summaries of U.S. federal tax law and regulation or legal conclusions
with respect thereto, have been reviewed by them and constitute
accurate summaries of the matters described therein in all material
respects;
(vi) UCAR has the corporate right, power and authority to execute
and deliver this Agreement, the Subscription Agreement and the Stock
Repurchase Agreement and to perform its respective obligations
hereunder and thereunder; and all corporate action required to be
taken by it for the due and proper authorization, execution and
delivery of this Agreement, the Subscription Agreement and the Stock
Repurchase Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly and validly taken;
(vii) no consent, approval, authorization, order, registration or
qualification of or with any federal or New York court or governmental
agency or body or any Delaware court or governmental agency or body
acting pursuant to the Delaware General Corporation Law is required
for the sale of the Offered Securities or the consummation of the
transactions contemplated by this Agreement, the Subscription
Agreement or the Stock Repurchase Agreement, except for the
registration under the Act of the Offered Securities, and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Offered
Securities by the Underwriters; and
16
(viii) each of this Agreement, the Subscription Agreement and the
Stock Repurchase Agreement has been duly authorized, executed and
delivered by UCAR, and each constitutes a valid and legally binding
agreement of UCAR;
(ix) the Securities, this Agreement, the Subscription Agreement
and the Stock Repurchase Agreement conform in all material respects to
the descriptions thereof included in the Prospectus;
(x) neither UCAR nor Global is an "investment company" or a
company "con trolled" by an investment company within the meaning of
the Investment Company Act and the rules and regulations of the
Commission thereunder, without taking account of any exemption under
the Investment Company Act arising out of the number of holders of
UCAR's securities; and
(xi) 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), to 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 (except
for financial statements, the notes thereto and other financial and
statistical data included in the Prospectus, as to which no opinion
need be expressed), as of their respective effective or issue dates,
and as of the Closing Date, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations, including those applicable to a definitive prospectus
forming part of a registration statement on Form S-3 under the Act.
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 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 relevant UCAR Group Member and public officials
which are furnished to the Underwriters.
Such opinion shall also state that it is being delivered to the
Underwriters at the request of UCAR.
(e) Peter B. Mancino, Esq., General Counsel of UCAR, shall have
furnished to the Underwriters his written opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to CSFBC, on behalf of the Underwriters, to the effect that:
(i) UCAR owns all the outstanding shares of the capital stock of
Global; and, except as disclosed in the Prospectus, Global owns,
directly or indirectly, (1) all the outstanding shares of capital
stock of each of Global's subsidiaries (other than UCAR Carbon S.A.
and its subsidiaries, in respect of which Global indirectly owns
approximately 94% of the outstanding shares of its capital stock, UCAR
Mexicana, S.A. de C.V. and its subsidiaries in respect of which Global
indirectly owns more than 99% of the outstanding shares of its capital
stock, UCAR Holdings S.A., Itapira Brasil
17
Investimentos E Participacoes Ltd. and UCAR Limited, as to which
qualifying shares totaling less than 1% are held by nominees, Grafit,
in respect of which Global indirectly owns approximately 90% of the
outstanding shares of its capital stock, Carbone Savoie, in respect of
which Global indirectly owns 70% of the outstanding shares of its
capital stock, and Elektroden, in respect of which Global indirectly
owns approximately 70% of the outstanding shares of its capital
stock), and (2) 50% of the outstanding shares of capital stock of EMSA
and CL, in each case, except as disclosed in the Prospectus, free and
clear of any lien, and, except for rights of first refusal on
transfers of capital stock of EMSA, Carbone Savoie, Elektroden and CL,
there are no rights granted to, or in favor of, any person to acquire
any such capital stock, any additional capital stock or any other
securities of any such subsidiary, EMSA or CL;
(ii) the sale of the Offered Securities, the execution, delivery
and performance of this Agreement, the Subscription Agreement and the
Stock Repurchase Agreement and the consummation of the transactions
contemplated hereby and thereby do not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of UCAR
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which UCAR is a party or by which
UCAR is bound or to which any of the property or assets of UCAR is
subject, in each case, known to such counsel, except where such
conflict, breach, violation, default or creation (individually or in
the aggregate) would not have a Material Adverse Effect, nor will such
actions result in any violation of the provisions of the charter or
by-laws of UCAR or any statute or, to such counsel's knowledge, any
judgment, order, decree, rule or regulation of any federal or state
court or governmental agency or body or arbitrator having jurisdiction
over UCAR or any of its properties or assets, except where such
violation (individually or in the aggregate) would not have a Material
Adverse Effect;
(iii) the Offered Securities have been duly executed (manually or
by facsimile) by UCAR;
(iv) UCAR is not in violation of any terms or provisions of its
charter or by-laws; and
(v) to the best knowledge of such counsel, there is no pending or
threatened action or suit or judicial, arbitral, rule-making or other
administrative or other proceeding to which UCAR or Global is a party
or of which any property or assets of UCAR or Global is the subject
that, singly or in the aggregate, (A) questions the validity of this
Agreement, the Subscription Agreement, the Stock Repurchase Agreement
or any action taken or required to be taken pursuant hereto or thereto
or (B) if determined adversely to UCAR or Global, is reasonably likely
to have a Material Adverse Effect.
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 he believes that he 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 relevant UCAR Group Member and public officials
which are furnished to the Underwriters.
Such opinion shall also state that it is being delivered to the
Underwriters at the request of UCAR.
18
(f) In addition to the matters set forth in the opinions referred to
in Sections 6(d) and (e) above, each such opinion shall also include a
statement to the effect that such counsel has participated in conferences
with representatives of UCAR, 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), nothing has come to the attention of such counsel
which leads them or him, as the case may be, to believe that any part of a
Registration Statement or any amendment thereto, at the time such
Registration Statement or amendment became effective, contained an untrue
statement of a material fact or omitted to state a 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,
at the time it was filed pursuant to Rule 424(b) or on the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion as to the financial statements and related schedules or other
financial or statistical data contained in the Registration Statement or
the Prospectus or any amendment or supplement thereto).
(g) You shall have received an opinion, dated the Closing Date, from
Simpson Thacher & Bartlett, special counsel for the Selling Stockholders,
in form and substance reasonably satisfactory to the Underwriters, to the
effect that:
(i) each of this Agreement, the Subscription Agreement and the
Stock Repurchase Agreement has been duly authorized, executed and
delivered by BCP and BFIP; and assuming that each of this Agreement,
the Subscription Agreement and the Stock Repurchase Agreement has been
duly authorized, executed and delivered by BOCP in accordance with the
laws of the Cayman Islands, each of this Agreement, the Subscription
Agreement and the Stock Repurchase Agreement has been duly authorized,
executed and delivered by BOCP in accordance with the laws of the
State of New York; and
(ii) each of the Selling Stockholders is the sole registered
owner of the Offered Securities to be sold by such Selling
Stockholder; each of BCP and BFIP has full partnership power, right
and authority to sell the Offered Securities to be sold by it and,
assuming that BOCP has full partnership power, right and authority to
sell the Offered Securities to be sold by it under the laws of the
Cayman Islands and assuming that the Underwriters are purchasing such
Offered Securities in good faith and without notice of any adverse
claim, upon payment for and delivery of the Offered Securities in
accordance with this Agreement and the Subscription Agreement, the
Underwriters will acquire all of the rights of each such Selling
Stockholder in the Offered Securities and will also acquire their
interest in such Offered Securities free of any adverse claim (within
the meaning of the UCC).
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 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.
Such opinion shall also state that it is being delivered to the
Underwriters at the request of the Selling Stockholders.
19
In addition to the matters set forth in clauses (i) and (ii) above,
such opinion shall also include a statement to the effect that such counsel
has participated in conferences with representatives of UCAR and the
Selling Stockholders, 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, nothing
has come to the attention of such counsel which leads them to believe that
any part of a Registration Statement or any amendment thereto, at the time
such Registration Statement or amendment became effective, contained an
untrue statement of a material fact or omitted to state a 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, at the time it was filed pursuant to Rule 424(b) or on the Closing
Date, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion as to the financial statements and related schedules or other
financial or statistical data contained in the Regis tration Statement or
the Prospectus or any amendment or supplement thereto); provided that the
opinions provided for in this paragraph shall only apply to the Stockholder
Information and the Supplemental Stockholder Information.
(h) You shall have received an opinion, dated the Closing Date, from
W.S. Walker & Company, counsel for BOCP, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) each of this Agreement, the Subscription Agreement and the
Stock Repurchase Agreement has been duly authorized, executed and
delivered by BOCP in accordance with the laws of the Cayman Islands;
and
(ii) BOCP has full partnership power, right and authority to
sell the Offered Securities to be sold by it under the laws of the
Cayman Islands.
(i) The Underwriters shall have received from Cravath, Swaine & Moore,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Underwriters may reasonably
require, and UCAR and the Selling Stockholders shall have furnished to such
counsel such documents as they reasonably request for enabling them to pass
upon such matters.
(j) UCAR shall have furnished to the Underwriters a letter (the
"bring-down letter") of KPMG Peat Marwick LLP, addressed to the
Underwriters and dated the Closing Date, confirming, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than three
business days prior to the date of the bring-down letter), the conclusions
and findings of such firm with respect to the financial information and
other matters covered by its letter delivered to the Underwriters
concurrently with the execution of this Agreement and described in Section
6(a).
(k) UCAR shall have furnished to the Underwriters a certificate, dated
the Closing Date, of its President and its Chief Financial Officer stating
that (A) such officers have carefully examined the Prospectus, (B) to the
best of their knowledge, after reasonable investigation, as of its date,
the Prospectus did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading and since its date, no event has
occurred which should have been set forth in a supplement or amendment to
the Prospectus in order to make the foregoing statement true as of the
Closing Date and (C) as of the Closing Date, the representations and
warranties of UCAR in this Agreement and the Subscription Agreement that
are qualified as to materiality are true and correct, and those not so
qualified are true and correct in all material respects,
20
UCAR has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date
and, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no event which has had a Material Adverse Effect
or development that can reasonably be expected (under current or reasonably
anticipated future economic industry or other relevant conditions) to
result in a Material Adverse Effect.
(l) Each of the Selling Stockholders shall have furnished to the
Underwriters, a certificate, dated the Closing Date, signed by such Selling
Stockholder or an authorized officer (as applicable) stating that as of the
Closing Date the representations and warranties of such Selling Stockholder
in this Agreement and the Subscription Agreement that are qualified as to
materiality are true and correct, and those not so qualified are true and
correct in all material respects, and that such Selling Stockholder has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date.
(m) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Prospectus
(exclusive of any amendment or supplement thereto), there has occurred no
event which has had a Material Adverse Effect or development that can
reasonably be expected (under current or reasonably anticipated future
economic industry or other relevant conditions) to result in a Material
Adverse Effect, or any change specified in the letters referred to in
Section 6(a) or (j), the effect of which, in any such case described above,
is, in the judgment of the Underwriters, so material and adverse as to make
it impracticable or inadvisable to proceed with the offering or delivery of
the Offered Securities on the terms and in the manner contemplated in the
Prospectus (exclusive of any amendment or supplement).
(n) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the sale of the Offered
Securities; and no injunction, restraining order or order of any other
nature by a federal or state court of competent jurisdiction shall have
been is sued as of the Closing Date which would prevent such sale.
(o) Subsequent to the execution and delivery of this Agreement, (x) no
downgrading shall have occurred in the rating accorded any of UCAR's or
Global's debt securities or preferred stock by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act, and (y) no such organization
shall have publicly announced that it has under surveillance or review
(other than an announcement with positive implications of a possible
upgrading) its rating of any of UCAR's or Global's debt securities or
preferred stock.
(p) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the Nasdaq National Market, the
American Stock Exchange or the over-the-counter market shall have been
suspended or limited, or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having
jurisdiction, or trading in securities of Global or UCAR on any exchange or
in the over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by
U.S. Federal authorities or New York State authorities or authorities in
the United Kingdom or (iii) an outbreak or escalation of hostilities in
which the United States or the United Kingdom 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, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impracticable or inadvisable to proceed with
the completion of the public
21
offering or the sale of and payment for the Offered Securities on the terms
and in the manner contemplated in the Prospectus.
(q) UCAR, the Selling Stockholders and the Managers shall have
executed and delivered the Subscription Agreement on the date of this
Agreement.
(r) If any event shall have occurred that requires UCAR to prepare an
amendment or supplement to the Prospectus, such amendment or supplement
shall have been prepared, copies thereof shall have been delivered to the
Underwriters and the Underwriters shall have been given a reasonable
opportunity to comment thereon.
(s) The "lock-up" agreements between the Underwriters and certain
executive officers and directors of UCAR relating to sales of Securities or
any securities convertible into or exercisable or exchangeable for
Securities, previously delivered to the Underwriters, shall be in full
force and effect on the Closing Date.
(t) UCAR, the Selling Stockholders and Chase Equity Associates, L.P.
shall have executed and delivered the Stock Repurchase Agreement and the
transactions contemplated thereby shall have been consummated as described
in the Prospectus.
UCAR and the Selling Stockholders, as applicable, will furnish the Underwriters
with such conformed copies of such opinions, certificates, letters and documents
as the Underwriters reasonably request.
7. Indemnification and Contribution. (a) UCAR will indemnify and hold
harmless each Underwriter and each Selling Stockholder and each of their
respective officers, employees and directors (as applicable) and each person who
controls such Underwriter or Selling Stockholder within the meaning of the Act
(collectively, for the purposes of this Section 7(a), the "Indemnified Persons")
against any losses, claims, damages or liabilities, joint or several, to which
such Indemnified Person 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 (or, in the Prospectus, in light of the circumstances under
which they were made) not misleading, and will reimburse each Indemnified Person
for any legal or other expenses reasonably incurred by such Indemnified Person
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that UCAR
will not be liable in any such case to any Indemnified Person to the extent that
any such loss, claim, damage, liability or action 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 with any
Excluded Information or Stockholder Information; provided further, however, that
as to any preliminary prospectus this Section 7(a) shall not inure to the
benefit of any Underwriter on account of any loss, claim, damage, liability or
action from the sale of the Offered Securities to any person by an Underwriter
if that Underwriter failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person if required under the Act, and
the untrue statement or alleged untrue statement or omission or alleged omission
in such preliminary prospectus was corrected in the Prospectus, unless, in
either case, such failure to deliver the Prospectus was a result of
noncompliance by UCAR with Section 5(a)(iii).
(b)(i) Each Underwriter will severally and not jointly indemnify and
hold harmless UCAR and each Selling Stockholder and each of their respective
officers, employees and directors (as applicable) and each person who controls
UCAR or such Selling Stockholder within the meaning of the Act (collectively,
for the purposes of this Section 7(b)(i), the "Indemnified Persons") against any
losses, claims, damages or liabilities to which such Indemnified Person may
become
22
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 (or,
in 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 any Excluded Information provided by
such Underwriter through CSFBC and will reimburse any legal or other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred.
(ii) Each of the Selling Stockholders, severally and not jointly, will
indemnify and hold harmless each of UCAR, each Underwriter, each other Selling
Stockholder and each of their respective officers, employees and directors (as
applicable) and each person who controls such Underwriter or such other Selling
Stockholder (as applicable) within the meaning of the Act (collectively, for the
purposes of this Section 7(b)(ii), the "Indemnified Persons") against any
losses, claims, damages or liabilities to which such Indemnified Person 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 the 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
(or, in 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 losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon Stockholder Information, and will reimburse each
Indemnified Person for any legal or other expenses reasonably incurred by such
Indemnified Person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred. The liability
of each Selling Stockholder for any indemnification under this Section 7 (and
the corresponding provisions of the Subscription Agreement) shall be limited to
an amount equal to the net proceeds (after deducting the Underwriters' discount)
received by such Selling Stockholder from the sale of the Offered Securities
sold pursuant to this Agreement and Subscription Agreement.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, 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 except to the extent it has been materially
prejudiced by such failure. In case any such action is brought against any
indemnified party and it notifies the 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 reasonably satisfactory to
such indemnified party (who shall not, except with the consent (which consent
shall not be unreasonably withheld) 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 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. After the indemnifying party has notified the
indemnified party that it is assuming such defense, the indemnified party shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying parties have agreed in writing to pay such fees and expenses, (ii)
the indemnifying
23
parties have failed in a timely manner to assume the defense and employ counsel
reasonably satisfactory to such indemnified party or (iii) the named parties to
any such action, suit or proceeding (including any impleaded parties) include
both such indemnified party and the indemnifying parties and such indemnified
party shall have been advised by its counsel that representation of such
indemnified party and any indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them (in which case the indemnifying
party shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such indemnified party). It is understood, however, that
the indemnifying parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such indemnified parties, and that all such fees and expenses shall be
reimbursed as they are incurred. An indemnifying party shall not be liable for
any settlement of any action or claim effected without its prior written
consent, which shall not be unreasonably withheld.
No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could reasonably have been a party and indemnity could
reasonably have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under Section 7(a) or (b),
then UCAR, each Selling Stockholder and each of the Underwriters 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 Section 7(a) or
(b), (i) in such proportion as is appropriate to reflect the relative benefits
received by UCAR, each Selling Stockholder and each of the Underwriters from the
offering of the Offered 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 UCAR, each Selling Stockholder and each of
the Underwriters 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 UCAR, each Selling
Stockholder and each of the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering pursuant hereto (before
deducting expenses) received by UCAR and the Selling Stockholders, respectively,
bear to the total underwriting discounts and commissions received by the
Underwriters, respectively. 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 UCAR, one of the Selling Stockholders or one
of 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), (i) no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered 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, and (ii) no Selling Stockholder shall
be required to contribute any amount in excess of the net proceeds received by
it in connection with the offer and sale of the Offered Securities. 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'
24
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of UCAR and each Selling Stockholder under this
Section shall be in addition to any liability which UCAR or such Selling
Stockholder, respectively, may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the 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 UCAR or a Selling Stockholder (as applicable),
to each officer of UCAR who has signed a Registration Statement and to each
person, if any, who controls UCAR or a Selling Stockholder within the meaning of
the Act. The rights and obligations of UCAR and each Selling Stockholder under
this Agreement (including those under Sections 3 and 7(d)) are several and not
joint. If any Selling Stockholder defaults in its obligation to sell the Offered
Securities to be sold by it on either the First Closing Date or any Optional
Closing Date, CSFBC shall have the right to terminate this Agreement without
liability on its part or on the part of any other Underwriter or Manager, UCAR
or any non-defaulting Selling Stockholder, except as provided in Section 9;
provided, however, 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 and provided further that such termination shall not release the
defaulting Selling Stockholder from liability to the Underwriters, UCAR and the
non-defaulting Selling Stockholders for its default.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First Closing Date or any Optional Closing Date and the aggregate number of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Selling Stockholders 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 Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total number of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Selling Stockholders 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, UCAR
or the Selling Stockholders, except as provided in Section 9 (provided that if
such default occurs with respect to Optional Securities after the First Closing
Date, this Agreement will not terminate as to the U.S. 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. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and certificates of the
Selling Stockholders and UCAR and their respective officers (as applicable) 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, any Selling
Stockholder, UCAR or any of their respective representatives, officers,
directors or controlling persons (as applicable), 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, UCAR shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of UCAR, the Selling Stockholders and the Underwriters pursuant to
Section 7 shall remain in effect,
25
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 Section 6(p), UCAR will 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.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Underwriters, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010, Attention: Investment Banking Department
Transactions Advisory Group; if sent to UCAR will be mailed, delivered or
telegraphed and confirmed to it at UCAR International Inc., 39 Old Ridgebury
Road, Danbury, CT 06817, Attention: General Counsel; and if sent to any of the
Selling Stockholders will be mailed, delivered or telegraphed and confirmed to
it in care of Blackstone Management Associates II L.L.C., 345 Park Avenue, New
York, New York 10154, Attention: Glenn H. Hutchins; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter (provided that such Underwriter
has provided its address to the notifying party). Any party hereto may change
the address to which notices to it are to be given by notice in accordance
herewith to the other parties hereto.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives,
heirs and successors and the officers, directors, agents and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation of Underwriters. CSFBC will act for the several
Underwriters in connection with the U.S. Offering and any action under this
Agreement taken by CSFBC will be binding upon all the Underwriters.
13. 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.
14. 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.
Each of UCAR and the Selling Stockholders hereby submits 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 your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among UCAR, the Selling
Stockholders and the several Underwriters in accordance with its terms.
Very truly yours,
UCAR INTERNATIONAL INC.,
by
------------------------------------
Name: Peter B. Mancino
Title: Vice President and Secretary
26
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND L.P.,
by BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C., General
Partner,
by
-----------------------------
Name:
Title:
BLACKSTONE OFFSHORE CAPITAL
PARTNERS II L.P.,
by BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C., General
Partner,
by
-----------------------------
Name:
Title:
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP II L.P.,
by BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C., General
Partner,
by
-----------------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
DILLON, READ & CO. INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
PAINEWEBBER INCORPORATED
THE NIKKO SECURITIES CO. INTERNATIONAL, INC.
Each by its duly authorized
attorney-in-fact
By CREDIT SUISSE FIRST BOSTON CORPORATION,
by
---------------------------------------
Name:
Title:
27
SCHEDULE A
----------
Number of
U.S. Firm
Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston Corporation
Dillon, Read & Co. Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
PaineWebber Incorporated
The Nikko Securities Co. International, Inc.
---------
TOTAL 5,120,000
=========
SCHEDULE B
Number of
Number of U.S. Optional
U.S. Firm Securities Securities
Selling Stockholder to be Sold to be Sold
------------------- ---------- ----------
Blackstone Capital Partners II
Merchant Banking Fund L.P.
Blackstone Offshore Capital
Partners II L.P.
Blackstone Family Investment
Partnership II L.P.
------------------- ------------------
Total