EXHIBIT 5.1
[Letterhead of Kelley Drye & Warren LLP]
September 16, 2003
The Board of Directors of Each of
GrafTech International Ltd.
GrafTech Finance Inc.
GrafTech Global Enterprises Inc.
UCAR Carbon Company Inc.
UCAR Carbon Technology LLC
UCAR Holdings V Inc.
UCAR Holdings III Inc.
UCAR International Trading Inc.
c/o GrafTech International Ltd.
Brandywine West
1521 Concord Pike, Suite 301
Wilmington, Delaware 19803
Ladies and Gentlemen:
We have acted as special counsel to GrafTech International
Ltd., a Delaware corporation ("GrafTech"), GrafTech Finance Inc., a Delaware
corporation ("Finance"), GrafTech Global Enterprises Inc., a Delaware
corporation ("Global"), UCAR Carbon Company Inc., a Delaware corporation
("Carbon"), UCAR Carbon Technology LLC, a Delaware limited liability company
("Technology"), UCAR Holdings V Inc., a California corporation ("Holdings V"),
UCAR Holdings III Inc., a Delaware corporation ("Holdings III"), and UCAR
International Trading Inc., a Delaware corporation ("Trading" and, together with
GrafTech, Finance, Global, Carbon, Technology, Holdings V, and Holdings III, the
"Registrants"), in connection with the preparation and filing of a Registration
Statement on Form S-3 (the "Registration Statement") filed with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended, for
the registration of the sale from time to time of up to $175,000,000 aggregate
maximum offering price of: (i) shares of common stock, par value $0.01 per
share, of GrafTech (the "Common Stock"); (ii) shares of preferred stock, par
value $0.01 per share, of GrafTech (the "Preferred Stock"); (iii) debt
securities issued by one or more of the Registrants (the "Debt Securities"),
which may be issued pursuant to an indenture, including supplemental indentures
(the "Indenture") between such Registrant or Registrants and a trustee to be
named; (iv) guarantees by one or more of the Registrants (the "Guarantees") of
Debt Securities issued by one or more of the other Registrants; (v) depositary
shares (the "Depositary Shares") representing interests in shares of Preferred
Stock, to be evidenced by depositary receipts which may be issued pursuant to
one or more deposit agreements (the "Deposit Agreement") between GrafTech and a
depositary or depositaries to be named; and (vi) warrants issued by one or more
of the Registrants (the "Warrants") to purchase Common Stock, Preferred Stock,
Debt Securities (including any related Guarantees) and Depositary Shares
(collectively with the Warrants, the "Securities"), which may be issued pursuant
to one or more warrant agreements, including supplemental warrant agreements
(the "Warrant Agreement") between such Registrant and a warrant agent or warrant
agents to be named. As such counsel, you have requested our opinion as to the
matters described herein relating to the issuance of the Securities.
We have examined: the Certificate or Articles of Incorporation
(or equivalent thereof) and By-Laws (or equivalent thereof) of each of the
Registrants, in each case as amended and restated through the date hereof;
minutes of the corporate proceedings of each of the Registrants through the date
hereof, in each case as made available to us by officers of each of the
Registrants; an executed copy of the Registration Statement and all exhibits
thereto, in the form filed with the Commission; a copy of the Rights Agreement
dated August 7, 1998 between GrafTech and Computershare Investor Services, LLC,
as amended, as made available to us by officers of GrafTech; and such matters of
law deemed necessary by us in order to deliver this opinion. In the course of
our examination, we have assumed that all documents required to be duly
authorized, executed and delivered by a party or parties other than the
Registrants have been duly authorized, executed and delivered by such party or
parties. In addition, we have assumed the genuineness of all signatures, the
authenticity of all originals, the conformity to originals of all copies, the
authenticity of the originals of such copies and the legal capacity of all
natural persons. As to certain factual matters, we have relied upon information
furnished to us by officers of each of the Registrants.
We express no opinion with respect to the enforceability of
any agreement, contract or document or any provision thereof: (i) to the extent
that such enforceability may be subject to, or affected by, applicable
bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent
transfer or conveyance or similar state or federal laws, judicially developed
doctrines affecting the rights and remedies of creditors generally or general
principles of equity (including commercial reasonableness, good faith and fair
dealing and the requirement that the right, remedy or penalty sought be
proportionate to the breach, default or injury), regardless of whether
enforceability is sought in a proceeding at law or in equity; (ii) providing for
specific performance, injunctive relief or other equitable remedies (including
any provision that limits the availability of such equitable remedies),
regardless of whether such enforceability is sought in a proceeding in equity or
at law; (iii) providing for indemnification and contribution, which provisions
may be limited by federal and state securities laws or policies underlying such
laws; (iv) requiring any waiver of stay or extension laws, diligent performance
or other acts that may be unenforceable under principles of public policy; (v)
to the extent that such enforceability may be subject to, or affected by,
compliance with, and limitations imposed by, procedural requirements relating to
the exercise of remedies or fiduciary duties relating to actions or omissions of
directors in the context of an imminent change-of-control or imminent potential
change-of-control; or (vi) providing for a choice of law, jurisdiction or venue
(and we have assumed that such provisions will be enforced).
We express no opinion concerning any law of any jurisdiction
other than (i) the laws of the States of New York and Connecticut, (ii) the
federal laws of the United States of America and (iii) with respect to the
Registrants (except for Holdings V), the General Corporation Law of the State of
Delaware and, for Holdings V, the General Corporation Law of the State of
California. Without limiting the foregoing, we express no opinion with respect
to the applicability or the effect of the laws of any other country, province,
state, municipality or jurisdiction or any rules, regulations or orders of any
governmental or regulatory authorities, bodies or agencies within any country,
province, state, municipality or jurisdiction.
Based upon and subject to the foregoing, we are of the opinion
that:
1. When necessary corporate action on the part of GrafTech has
been taken to authorize the issuance and sale of shares of Common Stock, and
when such shares of Common Stock are issued, paid for and delivered in
accordance with the applicable underwriting or other agreement, such shares of
Common Stock will be duly authorized, validly issued, fully paid and
non-assessable.
2. When necessary corporate action on the part of GrafTech has
been taken to authorize the issuance and sale of shares of a series of Preferred
Stock, including the designation of such series of Preferred Stock by the Board
of Directors of GrafTech and the proper filing with the Secretary of State of
the State of Delaware of a Certificate of Designations relating to such series
of Preferred Stock, and when such shares of such series of Preferred Stock are
issued, paid for and delivered in accordance with the applicable underwriting or
other agreement, such shares of such series of Preferred Stock will be duly
authorized, validly issued, fully paid and non-assessable.
3. When the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended, when necessary corporate action on the part
of the relevant Registrant or Registrants has been taken to authorize the
issuance and sale of a series of Debt Securities and any related Guarantees,
including authorization thereof in accordance with the Indenture and when the
Indenture, such Debt Securities and such Guarantees, as applicable, have been
duly executed, authenticated, issued, paid for and delivered in accordance with
the Indenture and the applicable underwriting or other agreement, such Debt
Securities and such Guarantees will constitute valid and binding obligations of
the relevant Registrant or Registrants, enforceable in accordance with their
respective terms.
4. When necessary corporate action on the part of GrafTech has
been taken to authorize a Deposit Agreement and the issuance and sale of a
series of Depositary Shares, when such Deposit Agreement, such Depositary Shares
and the relevant depositary receipts, as applicable, have been duly executed,
authenticated, issued, paid for and delivered in accordance with such Deposit
Agreement and the applicable underwriting or other agreement, and when the
relevant shares of a series of Preferred Stock have been duly authorized,
issued, paid for and delivered thereunder, such Depositary Shares will be valid
and binding instruments of the relevant depository, enforceable in accordance
with their terms.
5. When necessary corporate action on the part of the relevant
Registrant or Registrants has been taken to authorize a Warrant Agreement and
the issuance and sale of a series of Warrants and when such Warrant Agreement,
such Warrants and the relevant warrant certificates, as applicable, have been
duly executed, authenticated, issued, paid for and delivered in accordance with
such Warrant Agreement and the applicable underwriting or other agreement, such
Warrants will be valid and binding instruments of the relevant Registrant or
Registrants, enforceable in accordance with their terms.
In connection with our opinions expressed above, we have
assumed that, at or prior to the time of the delivery of any Security (i) the
relevant Registrant or Registrants shall not have been dissolved; (ii) the
Board of Directors of the relevant Registrant or Registrants shall have duly
established the terms of such Security; (iii) the due authorization of the
issuance and sale thereof shall not have been modified or rescinded; (iv) the
Registration Statement shall have been declared effective and such effectiveness
shall not have been suspended, terminated or rescinded; (v) there shall not
have occurred any change in law affecting the validity or enforceability of such
Security; and (vi) none of the terms of any Security to be established
subsequent to the date hereof nor the issuance and delivery thereof or the
compliance by a Registrant with the terms thereof will violate any law, rule or
regulation or will result in a violation of any provision of any contract,
agreement or instrument then binding upon such Registrant or any restriction
imposed by any court or any governmental or regulatory authority, agency or body
having jurisdiction over such Registrant.
We hereby consent to the filing of this letter as an exhibit
to the Registration Statement and to the reference to it in the prospectus
included therein under the caption "Legal Matters." In giving such consent, we
do not admit that we are in the category of persons whose consent is required
under Section 7 of the Act.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purposes
or relied upon by or furnished to any other person without our prior written
consent. We have no obligation to update this opinion for events or changes in
law or fact occurring after the date hereof.
Very truly yours,
KELLEY DRYE & WARREN LLP
By: /s/ M. Ridgway Barker
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A Partner