Exhibit 10.52
EXECUTION COPY
UCAR International Inc.
9,000,000 Shares of Common Stock
($0.01 par value)
Underwriting Agreement
July 25, 2001
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As representatives of the several underwriters
listed in Schedule I hereto
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
UCAR International Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to you and the other underwriters listed on Schedule
I hereto (the "Underwriters") an aggregate of 9,000,000 shares of common stock,
par value $0.01 per share, of the Company (the "Underwritten Shares") and, for
the sole purpose of covering over-allotments in connection with the sale of the
Underwritten Shares, at the option of the Underwriters, up to an additional
1,350,000 shares of common stock, par value $0.01 per share, of the Company (the
"Option Shares"). The Underwritten Shares and the Option Shares are herein
referred to as the "Shares". The shares of common stock, par value $0.01 per
share, of the Company to be outstanding after giving effect to the sale of the
Shares are herein referred to as the "Stock". The Stock, including the Shares,
will have attached thereto rights (the "Rights") to purchase one one-thousandth
of a share of preferred stock, par value $0.01 per share, of the Company (the
"Preferred Stock") when the rights become exercisable pursuant to a Rights
Agreement, dated as of August 7, 1998 and as amended on November 11, 2000 (the
"Rights Agreement"), between the Company and Computershare Investor Services,
LLC, as successor to The Bank of New York, as rights agent.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a form of prospectus, relating to the Shares and Rights.
The registration statement as amended at the time when it shall become effective
including information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Securities Act is
referred to in this Agreement as the "Registration Statement", and the
prospectus in the form first used to confirm sales of Shares is
referred to in this Agreement as the "Prospectus". If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such preliminary prospectus or the
Prospectus, as the case may be, and any reference to "amend", "amendment" or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Underwritten Shares to the
several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective number of Underwritten Shares set forth opposite
such Underwriter's name in Schedule I hereto at a purchase price per share of
$9.00 (the "Purchase Price").
In addition, the Company agrees to issue and sell the Option Shares to
the several Underwriters as hereinafter provided, and the Underwriters on the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, shall have the option to purchase, severally and
not jointly, from the Company up to an aggregate of 1,350,000 Option Shares at
the Purchase Price, for the sole purpose of covering over-allotments (if any) in
the sale of Underwritten Shares by the several Underwriters.
If any Option Shares are to be purchased, the number of Option Shares
to be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased as
the number of Underwritten Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company by the several Underwriters, subject, however, to
such adjustments to eliminate any fractional Shares as the Underwriters in their
sole discretion shall make.
J.P. Morgan Securities Inc. may exercise the option to purchase any or
all of the Option Shares at any time (but not more than once) on or before the
thirtieth day following the date of this Agreement by written notice from J. P.
Morgan Securities Inc. to the Company. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the date
and time when the Option Shares are to be delivered and paid for which may be
the same date and time as the Closing Date (as hereinafter defined) but shall
not be earlier than the Closing Date nor later than the tenth full Business Day
(as hereinafter defined) after the date of such notice (unless such time and
date are postponed in accordance with the provisions of
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Section 9 hereof). Any such notice shall be given at least two Business Days
prior to the date and time of delivery specified therein.
2. The Company understands that the Underwriters intend (i) to make a
public offering of the Shares as soon after (A) the Registration Statement has
become effective and (B) the parties hereto have executed and delivered this
Agreement, as in the judgment of the Underwriters is advisable and (ii)
initially to offer the Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the Underwriters in
the case of the Underwritten Shares, on July 31, 2001, or at such other time on
the same or such other date, not later than the fifth Business Day thereafter,
as the Underwriters and the Company may agree upon in writing or, in the case of
the Option Shares, on the date and time specified by the Underwriters in the
written notice of the Underwriters' election to purchase such Option Shares. The
time and date of such payment for the Underwritten Shares is referred to herein
as the "Closing Date" and the time and date for such payment for the Option
Shares, if other than the Closing Date, is herein referred to as the "Additional
Closing Date". For purposes of Rule 15c6-1 under the Exchange Act, the Closing
Date (if later than the otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of securities for all the
Shares sold pursuant to the offering. As used herein, the term "Business Day"
means any day other than a day on which banks are permitted or required to be
closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Underwriters for the respective accounts of the several Underwriters of the
Shares to be purchased on such date registered in such names and in such
denominations as the Underwriters shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Shares duly paid by the Company. The certificates for
the Shares will be made available for inspection and packaging by the
Underwriters at the office of J.P. Morgan Securities Inc. set forth above not
later than 1:00 P.M., New York City time, on the Business Day prior to the
Closing Date or the Additional Closing Date, as the case may be.
4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
expressly for use therein;
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(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Company, threatened by the Commission; and the
Registration Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, as of the applicable effective date as to the
Registration Statement and as of the date of the Prospectus, in all material
respects with the Securities Act and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto and as
of the date of the Prospectus and any amendment or supplement thereto, 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 not
misleading, and the Prospectus, as amended or supplemented, if applicable, at
the Closing Date or Additional Closing Date, as the case may be, will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; except that the foregoing representations
and warranties shall not apply to statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein;
(c) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are filed with
the Commission, will conform in all material respects to the requirements of the
Exchange Act, and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading;
(d) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly in all material respects, the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations and their consolidated cash flows
for the periods specified; and said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout such periods, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly in all
material respects the information required to be stated therein;
(e) since the date of the latest audited financial statements
included in the Registration Statement and the Prospectus, there has not been
any change in the capital stock or long-term debt of the Company or any of its
subsidiaries, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition (financial or
other), business, properties, financial position or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and except as set forth or contemplated in the
Prospectus neither the Company
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nor any of its subsidiaries has entered into any transaction or agreement (not
in the ordinary course of business) material to the Company and its subsidiaries
taken as a whole;
(f) there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid claim against
the Company or the Underwriters for a brokerage commission, finder's fee or
other like payment in connection with the offering;
(g) the Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "Intellectual Property Rights") necessary
to conduct the business now operated by them, or presently employed by them,
except where the failure to possess or acquire such intellectual property rights
could not, individually or in the aggregate, reasonably be expected to have a
material adverse effect upon the Company and its subsidiaries, taken as a whole,
and have not received any notice of infringement of or conflict with asserted
rights of others with respect to any Intellectual Property Rights that, if
determined adversely to the Company or any of its subsidiaries, could,
individually or in the aggregate, reasonably be expected to have a material
adverse effect upon the Company and its subsidiaries, taken as a whole;
(h) on the Closing Date, Amendment No. 3 (the "Amendment") to
the credit agreement dated February 22, 2000 (the "Credit Agreement") among the
Company, UCAR Global Enterprises Inc. ("UCAR Global"), UCAR Finance Inc. ("UCAR
Finance"), Morgan Guaranty Trust Company of New York, J.P. Morgan Securities
Inc., Credit Suisse First Boston and the other banks named therein will have
been duly authorized, executed and delivered by the Company, UCAR Global and
UCAR Finance and will conform in all material respects to the description
thereof in the Prospectus; and on the Closing Date, assuming the due
authorization, execution, and delivery by the agents and lenders thereunder, the
Amendment will constitute the valid and legally binding obligations of the
Company, UCAR Global and UCAR Finance, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles (regardless of
whether considered in a proceeding in equity or law);
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(j) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation, with appropriate power and authority to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business
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and is in good standing (or the equivalent thereof under analogous principles of
applicable foreign law in the case of any foreign subsidiary) under the laws of
each jurisdiction in which it owns or leases properties, or conducts business,
so as to require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole; and all the outstanding shares of
capital stock of each subsidiary of the Company have been duly authorized and
validly issued, are fully-paid and non-assessable (or the equivalent thereof
under analogous principles of applicable foreign law in the case of any foreign
subsidiary), and (except, in the case of foreign subsidiaries, for directors'
qualifying shares) are owned by the Company, directly or indirectly, free and
clear of all liens, encumbrances, security interests and claims, other than
those created by the Security Agreements (as defined in the Credit Agreement)
and in existence on the Closing Date, EXCEPT that the Company owns, directly or
indirectly, approximately 98% of the outstanding shares of capital stock of UCAR
Carbon S.A., 99% of the outstanding shares of capital stock of UCAR Carbon
Mexicana, S.A. de C.V., 97% of the outstanding shares of capital stock of
Graftech Inc., 99% of the outstanding shares of capital stock of UCAR Grafit
OAO, 99% of the outstanding shares of capital stock of UCAR Productos de Carbono
S.A. and 70% of the outstanding shares of capital stock of Carbone Savoie
S.A.S.;
(k) this Agreement has been duly authorized, executed and delivered
by the Company;
(l) the Company has an authorized capitalization as set forth
in the Prospectus and such authorized capital stock conforms to the description
thereof set forth in the Prospectus, and all of the outstanding shares of
capital stock of the Company have been duly authorized and validly issued, are
fully-paid and non-assessable and are not subject to any pre-emptive or similar
rights; and, except as described in or expressly contemplated by the Prospectus,
there are no outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in the
Company or any of its subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options;
(m) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be duly issued
and will be fully paid and non-assessable and will conform to the descriptions
thereof in the Prospectus; and the issuance of the Shares is not subject to any
preemptive or similar rights;
(n) the Rights Agreement has been duly authorized, executed
and delivered by the Company; the Rights have been duly authorized by the
Company and, when issued upon issuance of the Shares, will be validly issued,
and the Preferred Stock has been duly authorized by the Company and validly
reserved for issuance and, when issued upon exercise in accordance with the
terms of the Rights Agreement, will be validly issued, fully paid and
non-assessable;
(o) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in violation of or
in default under, its Amended and
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Restated Certificate of Incorporation (the "Certificate of Incorporation") or
Amended and Restated By-Laws (the "By-Laws") or any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company and its
subsidiaries taken as a whole; the issue and sale of the Shares and the
performance by the Company of its obligations under this Agreement and the
consummation of the transactions contemplated herein will not (i) conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or (iii) result in any violation of
any applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
subsidiaries or any of their respective properties, except, in the case of
clauses (i) and (iii), for such conflicts, breaches, defaults and violations
which could not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and its subsidiaries, taken as a
whole; and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and as may be required under state
securities or Blue Sky Laws in connection with the purchase and distribution of
the Shares by the Underwriters;
(p) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries or any of their respective properties or to
which the Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries is or may be the subject
which, if determined adversely to the Company or any of its subsidiaries, could,
individually or in the aggregate, have, or reasonably be expected to have, a
material adverse effect on the condition (financial or other), business,
properties, financial position or results of operations of the Company and its
subsidiaries, taken as a whole, and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(q) there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required;
(r) the Company and its subsidiaries have good and marketable
title in fee simple (or the equivalent thereof under analogous principles of
applicable foreign law) to all items of real property and good and marketable
title to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except for those created by the Security
Agreements (as defined in the Credit Agreement) and in existence on the Closing
Date or such as are described or referred to in the Prospectus or such as do not
materially affect the
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value of such property and do not interfere with the use made or proposed to be
made of such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held by
them under valid, existing and enforceable leases with such exceptions as are
not material and do not interfere with the use made or proposed to be made of
such property and buildings by the Company or its subsidiaries;
(s) no relationship, direct or indirect, exists between or
among the Company or any or its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Securities Act to be
described in the Registration Statement and the Prospectus which is not so
described;
(t) no person has the right to require the Company to register
any securities for offering and sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or the issue and sale
of the Shares;
(u) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(v) KPMG LLP who have certified certain financial statements
of the Company and its subsidiaries and Deloitte & Touche LLP are independent
public accountants as required by the Securities Act;
(w) the Company and its subsidiaries have filed all material
federal, state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments received by them
or any of them to the extent that such taxes have become due and are not being
contested in good faith; and, except as disclosed in the Registration Statement
and the Prospectus, there is no material tax deficiency which has been or might
reasonably be expected to be asserted or threatened against the Company or any
subsidiary;
(x) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Common
Stock;
(y) each of the Company and its subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as conducted as of
the date hereof, except where such failure could not, individually or in the
aggregate, be reasonably expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and neither the Company nor any
such subsidiary has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit, certificate, consent,
order, approval or other authorization, except as described in the Registration
Statement and the Prospectus or
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where such revocation or modification, individually or in the aggregate, could
not reasonably be expected to have a material adverse effect on the Company and
its subsidiaries, taken as a whole; and each of the Company and its subsidiaries
is in compliance with all laws and regulations relating to the conduct of its
business as conducted as of the date hereof, except where such noncompliance
could not, individually or in the aggregate, be reasonably expected to result in
a material adverse effect on the Company and its subsidiaries, taken as a whole;
(z) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or any of
its subsidiaries which are likely to have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(aa) the Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws, regulations,
orders and directives relating to the protection of human health and safety, the
environment or hazardous or toxic materials, substances or wastes
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses, (iii) are in compliance with all terms and conditions of
any such permit, license or approval and (iv) are aware of no conditions
relating to hazardous or toxic materials, substances or wastes on any property
or facility currently or formerly owned or operated by the Company or any of its
subsidiaries that could reasonably be expected to require investigation,
remediation or monitoring under Environmental Laws except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals, failure to comply with the terms and conditions of
such permits, licenses or approvals or investigation, remediation or monitoring
would not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and
(bb) in the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(cc) with respect to each employee benefit plan (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) that is maintained, administered or contributed to by the
Company or any other person or entity that, together with the Company, is
treated as a single employer under Section 414 of the Internal Revenue Code of
1986, as amended (the "Code") (each such person or entity, an "ERISA
Affiliate"), the Company, each such ERISA Affiliate and each such plan complies
in all material respects with all applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Code, and each such plan
has been administered and operated in accordance with its terms. None of the
Company or any of its ERISA Affiliates has incurred any material liability to
any such plan (including any multiemployer plan (within the meaning of Section
3(37) of ERISA)) or to the Pension Benefit Guaranty Corporation that has not
been fully paid. No
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prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption and no
reportable event (within the meaning of Section 4043 of ERISA) has occurred for
which the 30-day reporting requirement has not been waived. For each such plan
which is subject to the funding rules of Section 412 of the Code or Section 302
of ERISA, no "accumulated funding deficiency" as defined in Section 412 of the
Code has been incurred, whether or not waived, and the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeded the present value of all benefits accrued under such
plan determined using reasonable actuarial assumptions.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, to file the
final Prospectus with the Commission within the time periods specified by Rule
424(b) and Rule 430A under the Securities Act and to file promptly all reports
and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Shares; and to furnish copies of the Prospectus to the Underwriters in New
York City prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agreement in such quantities as the Underwriters may
reasonably request;
(b) to deliver, at the expense of the Company, to the
Underwriters four signed copies of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits and documents
incorporated by reference therein, and to each other Underwriter a conformed
copy of the Registration Statement (as originally filed) and each amendment
thereto, in each case without exhibits but including the documents incorporated
by reference therein and, during the period mentioned in paragraph (e) below, to
each of the Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by reference
therein as the Underwriters may reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the Underwriters a copy
of the proposed amendment or supplement for review and not to file any such
proposed amendment or supplement to which the Underwriters reasonably object;
(d) to advise the Underwriters promptly, and to confirm such
advice in writing (i) when the Registration Statement has become effective, (ii)
when any amendment to the Registration Statement has been filed or becomes
effective, (iii) when any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish the Underwriters with copies thereof, (iv) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional information, (v)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration
10
Statement or of any order preventing or suspending the use
of any preliminary prospectus or the Prospectus or the initiation or threatening
of any proceeding for that purpose, (vi) of the occurrence of any event, within
the period referenced in paragraph (e) below, 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 in order to make
the statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, and (vii) of the receipt by the
Company of any notification with respect to any suspension of the qualification
of the Shares for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best efforts to
prevent the issuance of any such stop order, or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or of any
order suspending any such qualification of the shares, or notification of any
such order thereof and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the Underwriters
a prospectus relating to the Shares is required by law to be delivered in
connection with sales by the Underwriters or any dealer, any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses the Underwriters will furnish to the Company) to
which Shares may have been sold by the Underwriters on behalf of the
Underwriters and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Shares; PROVIDED that the Company
shall not be required to qualify to do business in any jurisdiction where it is
not so qualified or to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to
the Underwriters as soon as practicable (but not later than (i) the 45th day
after the end of the fourth fiscal quarter following the fiscal quarter that
includes the effective date, or (ii) if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, the 90th day after the end of such fourth
fiscal quarter) an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Company occurring after
the effective date of the Registration Statement, which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(h) so long as the Shares are outstanding, to furnish to the
Underwriters copies of all reports or other communications (financial or other)
furnished to holders of the Shares, and copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange;
11
(i) for a period of 90 days after the date of the final
Prospectus relating to the Shares not to (i) offer, pledge, announce the
intention to sell, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or indirectly,
any shares of Stock or any securities convertible into or exercisable or
exchangeable for Stock or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Stock, whether any such transaction described in clause (i) or (ii) above is
to be settled by delivery of Stock or such other securities, in cash or
otherwise without the prior written consent of J. P. Morgan Securities Inc.,
other than (i) the sale and issuance of the Shares to be sold hereunder, (ii)
contributions, sales and issuances of Stock to the Company's employee benefits
protection trust or under the Company's employee savings plan in the ordinary
course, (iii) grants of stock options and other awards under the Company's
employee and director equity incentive or stock option plans in the ordinary
course or as otherwise described in the Prospectus, (iv) sales and issuances of
Stock upon the exercise of stock options and other awards granted prior to the
date hereof or as permitted by the preceding clause (iii), and (v) filing of
registration statements relating to Stock described in the preceding clauses
(ii), (iii) and (iv);
(j) to use the net proceeds received by the Company from the sale of
the Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(k) to use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange (the "Exchange");
(l) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all costs
and expenses (i) incident to the preparation, issuance, execution and delivery
of the Shares, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or qualification of
the Shares under the laws of such jurisdictions as the Underwriters may
designate (including fees of counsel for the Underwriters and its
disbursements), (iv) in connection with the listing of the Shares on the
Exchange, (v) related to the filing with, and clearance of the offering by, the
National Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and the
furnishing to the Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (vii) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors, (viii) the cost of preparing stock
certificates and (ix) the cost and charges of any transfer agent and any
registrar.
6. The several obligations of the Underwriters hereunder to purchase
the Shares on the Closing Date or the Additional Closing Date, as the case may
be, are subject to the performance by the Company of its obligations hereunder
and to the following additional conditions:
12
(a) the Registration Statement shall have become effective (or
if a post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective) not later than 5:00
P.M., New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional information
shall have been complied with to the satisfaction of the Underwriters;
(b) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date or the
Additional Closing Date, as the case may be, as if made on and as of the Closing
Date or the Additional Closing Date, as the case may be, and the Company shall
have complied with all agreements and all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date or the Additional Closing
Date, as the case may be;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date or the Additional Closing Date, as the case may
be, there shall not have occurred any downgrading, nor shall any notice have
been given of (i) any downgrading, (ii) any intended or potential downgrading or
(iii) any review or possible change that does not indicate an improvement, in
the rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus there shall not have
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition (financial or
other), business, properties, financial position or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the Closing Date or the Additional Closing Date, as the case
may be, on the terms and in the manner contemplated in the Prospectus; and
neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus;
(e) the Underwriters shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, a certificate
of an executive officer of the Company, with specific knowledge about the
Company's financial matters, satisfactory to the Underwriters to the effect set
forth in subsections (a) through (d) (with respect to the respective
representations, warranties, agreements and conditions of the Company) of this
Section and to the further effect that there has not occurred any material
adverse change, or any development
13
involving a prospective material adverse change, in or affecting the condition
(financial or other), business, properties, financial position or results of
operations of the Company and its subsidiaries, taken as a whole, from that set
forth or contemplated in the Registration Statement;
(f) Kelley Drye & Warren LLP, counsel for the Company, shall
have furnished to the Underwriters their written opinion, dated the Closing Date
or the Additional Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(iii) each of the Company's domestic subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation with appropriate power and authority to own its
properties and conduct its business as described in the Prospectus and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts business, so as to require such qualification,
other than where the failure to be so qualified and in good standing would not
have a material adverse effect on the Company and its subsidiaries taken as a
whole;
(iv) such counsel does not know of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(v) the Amendment has been duly authorized, executed and
delivered by the Company, UCAR Global and UCAR Finance and conforms in all
material respects to the description thereof in the Prospectus; and assuming the
due authorization, execution, and delivery by the agents and lenders thereunder,
the Amendment constitutes the valid and legally binding obligations of the
Company, UCAR Global and UCAR Finance except as may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether considered in a proceeding in equity or
at law);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the authorized capital stock of the Company conforms to the
description thereof contained in the Prospectus;
14
(viii) the shares of capital stock of the Company outstanding
prior to the issuance of the Shares to be sold by the Company have been duly
authorized and are validly issued, fully paid and non-assessable;
(ix) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and when delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable and the issuance of the Shares is not
subject to any preemptive or similar rights;
(x) the statements in the Prospectus under "Certain U.S. Tax
Consequences for Non-U.S. Investors" and "Underwriting", the statements in the
Prospectus relating to the Company's common stock incorporated by reference from
the description of the Company's common stock in the Company's registration
statement on Form 8-A dated July 28, 1995, the statements in the Prospectus
relating to the Company's preferred stock purchase rights incorporated by
reference from the description of the Company's preferred stock purchase rights
in the Company's registration statement on Form 8-A dated September 10, 1998,
the statements in the Prospectus relating to the Company's legal proceedings
incorporated by reference from the description of the Company's legal
proceedings from Item 3 of Part 1 of the Company's Annual Report on Form 10-K
for the year ended December 31, 2000 and the statements in the Registration
Statement under "Indemnification of Directors and Officers" in Item 15, insofar
as such statements constitute a summary of the terms of the Stock, the Preferred
Stock, legal matters, documents or proceedings referred to therein, fairly
present in all material respects the information called for with respect to such
terms, legal matters, documents or proceedings;
(xi) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements thereto (other
than the financial statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and believes that (other than the
financial statements and related schedules therein, as to which such counsel
need express no belief) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and that the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(xii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental agency or
body is required for the issue and sale of the Shares or the consummation of the
other transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters;
15
(xiii) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(xiv) the documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company prior to the
Closing Date or the Additional Closing Date, as the case may be (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and they have no
reason to believe that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Securities Act, 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, in the case of other documents which were filed with the Commission under
the Exchange Act, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were so filed,
not misleading; and
(xv) the Rights Agreement has been duly authorized, executed and
delivered by the Company; the Rights have been duly authorized by the Company
and, when issued upon issuance of the Shares, will be validly issued, and the
Preferred Stock has been duly authorized by the Company and validly reserved for
issuance upon the exercise of the Rights and, when issued upon such exercise in
accordance with the terms of the Rights Agreement, will be validly issued, fully
paid and non-assessable.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the State of New York and the General Corporation Law of the State of Delaware
to the extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable laws; and
(B) as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company. The opinion
of such counsel for the Company shall state that the opinion of any such other
counsel upon which they relied is in form satisfactory to such counsel and, in
such counsel's opinion, the Underwriters and they are justified in relying
thereon. With respect to the matters to be covered in subparagraphs (xi) and
(xiv) above counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any document incorporated by reference therein and any amendment
or supplement thereto and review and discussion of the contents thereof but is
without independent check or verification except as specified.
The opinion of Kelley Drye & Warren LLP described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
16
(g) Karen G. Narwold, General Counsel of the Company, shall have
furnished to the Underwriters her written opinion, dated the Closing Date or the
Additional Closing Date, as the case may be, in form and substance satisfactory
to the Underwriters, to the effect that:
(i) each of the Company's foreign subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation with appropriate power and authority to own its
properties and conduct its business as described in the Prospectus and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts business, so as to require such qualification,
other than where the failure to be so qualified and in good standing would not
have a material adverse effect on the Company and its subsidiaries taken as a
whole;
(ii) all of the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable (or the equivalent thereof under analogous principles of foreign
law in the case of any foreign subsidiary), and (except, in the case of foreign
subsidiaries, for directors' qualifying shares) are owned by the Company,
directly or indirectly, free and clear of all liens, encumbrances, security
interests and claims other than those created by the Security Agreements and in
existence on the Closing Date, EXCEPT that the Company owns, directly or
indirectly, approximately 98% of the outstanding shares of capital stock of UCAR
Carbon S.A., 99% of the outstanding shares of capital stock of UCAR Carbon
Mexicana S.A. de C.V., 97% of the outstanding shares of capital stock of
Graftech Inc., 99% of the outstanding shares of capital stock of UCAR Grafit
OAO, 99% of the outstanding shares of capital stock of UCAR Produtos de Carbono
S.A. and 70% of the outstanding shares of capital stock of Carbone Savoie
S.A.S.;
(iii) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to the best of such counsel's knowledge, threatened against or
affecting the Company or any of its subsidiaries or any of their respective
properties or to which the Company or of its subsidiaries is or may be a party
or to which any property of the Company or its subsidiaries is or may be the
subject which, if determined adversely to the Company or any of its
subsidiaries, could, individually or in the aggregate, have a material adverse
effect on the condition (financial or other), business, properties, financial
position or results of operations of the Company and its subsidiaries, taken as
a whole; and to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(iv) neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties is bound, except
for violations and defaults which, individually and in the aggregate, are not
material to the Company and its subsidiaries, taken as a whole; the issue and
sale of the Shares being delivered on the Closing Date or the Additional Closing
Date, as the case may be, and the performance by the Company of its obligations
under this Agreement and the consummation of the transactions contemplated
herein will not (A) conflict with or result in a
17
breach of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, (B)
result in any violation of the provisions of the Certificate of Incorporation or
the By-Laws of the Company or (C) result in any violation of any applicable law
or statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, its subsidiaries or any of their
respective properties, except, in the case of clauses (A) and (C), for such
conflicts, breaches, defaults and violations which could not, individually or in
the aggregate, reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(v) each of the Company and its subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as conducted as of
the date hereof, except where such failure could not, individually or in the
aggregate, be reasonably expected to result in a material adverse effect on the
Company and its subsidiaries, taken as a whole; and neither the Company nor any
such subsidiary has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit, certificate, consent,
order, approval or other authorization, except as described in the Registration
Statement and the Prospectus or which, individually or in the aggregate, could
not reasonably be expected to result in a material adverse effect on the Company
and its subsidiaries, taken as a whole; and each of the Company and its
subsidiaries is in compliance with all laws and regulations relating to the
conduct of its business as conducted as of the date of the Prospectus, except
where such noncompliance could not, individually or in the aggregate, be
reasonably expected to result in a material adverse effect on the Company and
its subsidiaries, taken as a whole.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the State of Connecticut and the General Corporation Law of the State of
Delaware to the extent such counsel deems proper and to the extent specified in
such opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable laws; and
(B) as to matters of fact to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company. The opinion
of such counsel for the Company shall state that the opinion of any such other
counsel upon which they relied is in form satisfactory to such counsel and, in
such counsel's opinion, the Underwriters, and they are justified in relying
thereon.
The opinion of Karen G. Narwold described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
18
(h) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date or Additional Closing Date,
as the case may be, KPMG LLP and Deloitte & Touche LLP shall have furnished to
you letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus;
(i) the Underwriters shall have received on and as of the Closing Date
or Additional Closing Date, as the case may be, an opinion of Cravath, Swaine &
Moore, counsel to the Underwriters, with respect to the due authorization and
valid issuance of the Shares, the Registration Statement, the Prospectus and
other related matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(j) the Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance;
(k) on or prior to the Closing Date or Additional Closing Date, as the
case may be, the Company shall have furnished to the Underwriters such further
certificates and documents as the Underwriters shall reasonably request;
(l) the "lock-up" agreements, each substantially in the form of Exhibit
A hereto, between you and certain officers and directors of the Company relating
to sales and certain other dispositions of shares of Stock or certain other
securities, delivered to you on or before the date hereof, shall be in full
force and effect on the Closing Date or Additional Closing Date, as the case may
be; and
(m) the Amendment shall be in full force and effect and the
Underwriters shall have received true and correct copies of all documents
pertaining thereto and evidence reasonably satisfactory to the Underwriters of
the effectiveness thereof.
7. The Company agrees to indemnify and hold harmless each Underwriter,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Shares and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any related preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue
19
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use therein; PROVIDED, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus the indemnity agreement contained in this paragraph
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the Shares concerned,
to the extent that a prospectus relating to such Shares was required to be
delivered by such Underwriter under the Act in connection with such purchase and
any such loss, claim, damage or liability of such Underwriter results from the
fact that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Shares to such person, a copy of the Prospectus
correcting such untrue statement or alleged untrue statement or such omission or
alleged omission if the Company had previously furnished copies thereof to such
Underwriter. Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, but the omission to so notify the Indemnifying Person will
not relieve it from any liability which it may have to any Indemnified Person
except to the extent it is materially prejudiced by such failure, and the
Indemnifying Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters, each affiliate of any Underwriter which
assists such Underwriter in the distribution of the Shares and such control
persons of Underwriters shall be designated in writing by J.P. Morgan Securities
Inc. and any such separate firm for the Company, its directors, its officers who
sign the Registration Statement and such control persons of the Company shall be
designated in writing by the
20
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding and does not include a statement as to, or an admission of fault,
culpability or failure to act by or on behalf of an Indemnified Party.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the total underwriting
discounts and the commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purposes) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the
21
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares set forth opposite their names in Schedule I hereto,
and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in the absolute discretion of the Underwriters, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (or, in the case of the Option Shares, prior to the Additional
Closing Date) (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange or the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Underwriters, is material and adverse and which, in the judgment of the
Underwriters, makes it impracticable to market the Shares being delivered at the
Closing Date or the Additional Closing Date, as the case may be, on the terms
and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to
22
purchase hereunder on such date, and the aggregate number of Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of Shares to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the number of Shares set forth opposite their respective names
in Schedule I bears to the aggregate number of Underwritten Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Underwriters may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; PROVIDED that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to Section 1 be increased pursuant
to this Section 9 by an amount in excess of one-tenth of such number of Shares
without the written consent of such Underwriter. If on the Closing Date or the
Additional Closing Date, as the case may be, any Underwriter or Underwriters
shall fail or refuse to purchase Shares which it or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date, and arrangements satisfactory to the Underwriters and
the Company for the purchase of such Shares are not made within 36 hours after
such default, this Agreement (or the obligations of the several Underwriters to
purchase the Option Shares, as the case may be) shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date (or, in the case of the Option Shares, the Additional Closing Date), but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of its counsel)
reasonably incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder; PROVIDED that the provisions of this Section 10
shall not apply in the event this Agreement is terminated by the Underwriters
pursuant to Section 8 or 9.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, each affiliate of any Underwriter which assists
such Underwriter in the distribution of the Shares, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Shares from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
23
12. Any action by the Underwriters hereunder may be taken jointly or by
J.P. Morgan Securities Inc. alone on behalf of the Underwriters, and any such
action taken jointly or by J.P. Morgan Securities Inc. alone shall be binding
upon the Underwriters. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
given c/o J.P. Morgan Securities Inc., 270 Park Avenue, New York, New York 10017
(telefax: (212) 834-6648); Attention: Syndicate Department. Notices to the
Company shall be given to it at UCAR International Inc., 3102 West End Avenue,
Suite 1100, Nashville, TN 37203 (telefax: (615) 760-7624); Attention: General
Counsel.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS
OF LAWS PROVISIONS THEREOF.
24
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
UCAR International Inc.
By: /s/ Corrado De Gasperis
--------------------------------
Name: Corrado De Gasperis
Title: V.P., Chief Financial
Officer and Chief
Information Officer
Accepted: July 25, 2001
J.P. Morgan Securities Inc.
Credit Suisse First Boston Corporation
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Acting severally on behalf of
themselves.
By: J.P. Morgan Securities Inc.
By: /s/ David B. Walker
---------------------------------------
Name: David B. Walker
Title: Vice President
25
SCHEDULE I
Number of Shares
Underwriter to be Purchased
- ----------- ----------------
J.P. Morgan Securities Inc. $2,400,000
Credit Suisse First Boston Corporation $2,400,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated $2,400,000
Bear, Stearns & Co. Inc. $ 360,000
Banc of America Securities LLC $ 360,000
Gabelli & Company Inc. $ 360,000
Scotia Capital (USA) Inc. $ 360,000
ABN AMRO Incorporated $ 360,000
===========
Total $9,000,000
26
LOCK-UP AGREEMENT
____, 2001
UCAR INTERNATIONAL INC.
3102 West End Avenue
Suite 1100
Nashville, TN 31203
J.P. MORGAN SECURITIES INC. CREDIT SUISSE FIRST BOSTON CORPORATION MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED c/o J.P. Morgan Securities Inc.
60 Wall Street New York, NY 10260
Re: UCAR International Inc.--- Public Offering
Ladies and Gentlemen:
The undersigned understands that each of you proposes to enter into an
Underwriting Agreement (the "Underwriting Agreement") by and among UCAR
International Inc., a Delaware corporation (the Company"), and each of the
underwriters mentioned above (the "Underwriters") providing for the public
offering (the "Public Offering") by the Underwriters of common stock, $0.01 per
share par value (the "Common Stock"), of the Company (the "Shares"). Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Underwriting Agreement.
In consideration of the Underwriters' agreement to purchase and make
the Public Offering of the Shares, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of J.P. Morgan Securities Inc. on behalf of
the Underwriters, the undersigned will not, during the period ending 90 days
after the date of the final prospectus relating to the Public Offering (the
"Prospectus"), (i) offer, pledge, announce the intention to sell, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
(including without limitation, Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and securities which may
be issued upon exercise of a stock option or warrant) or (2) enter into any swap
or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. In addition, the
undersigned agrees that, without the prior written consent of J.P. Morgan
Securities Inc. on behalf of the Underwriters, it will not, during the period
ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock.
27
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Lock-Up Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become
effective, or if the Underwriting Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for
and delivery of the Shares to be sold thereunder, the undersigned shall be
released from all obligations under this Lock-Up Agreement.
28
The undersigned understands that the Underwriters are entering into the
Underwriting Agreement and proceeding with the Public Offering in reliance upon
this Lock-Up Agreement.
This Lock-Up Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
Very truly yours,
[NAME OF STOCKHOLDER]
By:
-------------------------------
Name:
Title:
Accepted as of the date first set forth above:
J.P. MORGAN SECURITIES INC.
CREDIT SUISSE FIRST BOSTON
CORPORATION MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
Acting severally on behalf of themselves.
By: J.P. MORGAN SECURITIES INC.
By:
-------------------------------------------
Name:
Title:
29