Exhibit 4.5.0
EXECUTION COPY
$225,000,000 AGGREGATE PRINCIPAL AMOUNT
GRAFTECH INTERNATIONAL LTD.
1 5/8% CONVERTIBLE SENIOR DEBENTURES
RESALE REGISTRATION RIGHTS AGREEMENT
DATED JANUARY 22, 2004
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RESALE REGISTRATION RIGHTS AGREEMENT, dated as of January 22, 2004, among
GrafTech International Ltd., a Delaware corporation (together with any successor
entity, herein referred to as the "COMPANY"), the guarantors listed in Schedule
2 to the Purchase Agreement (as defined below) (together with any successor
entity, herein referred to as the "GUARANTORS"), and J.P. Morgan Securities
Inc., as representative of the several initial purchasers (the "INITIAL
PURCHASERS") under the Purchase Agreement.
Pursuant to the Purchase Agreement, dated as of January 15, 2004, among the
Company, the Guarantors and J.P. Morgan Securities Inc. as representative of the
Initial Purchasers (the "PURCHASE AGREEMENT"), the Initial Purchasers have
agreed to purchase from the Company $180,000,000 ($225,000,000 if the Initial
Purchasers exercise their option in full) in aggregate principal amount of 1 ?%
Convertible Senior Debentures (the "DEBENTURES") of the Company. The Debentures
will be convertible into fully paid, nonassessable shares of common stock, par
value $0.01 per share, of the Company (the "COMMON STOCK"). The Debentures will
be convertible on the terms, and subject to the conditions, set forth in the
Indenture (as defined herein). To induce the Initial Purchasers to purchase the
Debentures, the Company and the Guarantors have agreed to provide the
registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized terms shall have the following
meanings:
"AFFILIATE" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise. The
terms "CONTROLLING" and "controlled" have meanings correlative to the foregoing.
"AGREEMENT": This Resale Registration Rights Agreement.
"AMENDED EFFECTIVENESS DEADLINE DATE": As defined in Section 2(e) hereof.
"BLUE SKY APPLICATION": As defined in Section 6(a)(i) hereof.
"BUSINESS DAY": The definition of "Business Day" in the Indenture.
"COMMISSION": Securities and Exchange Commission.
"COMMON STOCK": As defined in the preamble hereto.
"COMPANY": As defined in the preamble hereto.
"CONVERSION PRICE": As defined in the Indenture.
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"DEBENTURES": As defined in the preamble hereto.
"EFFECTIVENESS PERIOD": As defined in Section 2(a)(iii) hereof.
"EFFECTIVENESS TARGET DATE": As defined in Section 2(a)(ii) hereof.
"EXCHANGE ACT": Securities Exchange Act of 1934, as amended.
"GUARANTEES": The senior unsecured guarantees of the Debentures by the
Guarantors.
"GUARANTORS": As defined in the preamble hereto.
"HOLDER": A Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
"INDEMNIFIED HOLDER": As defined in Section 6(a) hereof.
"INDENTURE": The Indenture, dated as of January 22, 2004 among the Company,
the Guarantors and U.S. Bank National Association, as trustee (the "TRUSTEE"),
pursuant to which the Debentures are to be issued, as such Indenture may be
amended, modified or supplemented from time to time in accordance with the terms
thereof.
"INITIAL PURCHASERS": As defined in the preamble hereto.
"LIQUIDATED DAMAGES": As defined in Section 3(a) hereof.
"LIQUIDATED DAMAGES PAYMENT DATE": Each January 15 and July 15.
"MAJORITY OF HOLDERS": Holders holding over 50% of the aggregate principal
amount of Debentures outstanding; provided that, for the purpose of this
definition, a holder of Shares that constitute Transfer Restricted Securities
shall be deemed to hold an aggregate principal amount of Debentures (in addition
to the principal amount of Debentures held by such holder) equal to the quotient
of (x) the number of such shares of Common Stock held by such holder and (y) the
conversion rate in effect at the time of such conversion, redemption or
repurchase as determined in accordance with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"NOTICE AND QUESTIONNAIRE": A written notice executed by the respective
Holder and delivered to the Company containing substantially the information
called for by the Selling Securityholder Notice and Questionnaire attached as
Appendix A to the Offering Memorandum of the Company issued January 15, 2004
relating to the Debentures.
"NOTICE HOLDER": On any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.
"PERSON": An individual, partnership, corporation, company, unincorporated
organization, trust or joint venture or a government or agency or political
subdivision thereof.
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"PURCHASE AGREEMENT": As defined in the preamble hereto.
"PROSPECTUS": The prospectus included in a Shelf Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
"RECORD HOLDER": With respect to any Liquidated Damages Payment Date, each
Person who is a Holder on the January 1 or July 1 immediately preceding the
relevant Liquidated Damages Payment Date. In the case of a Holder of Shares,
"Record Holder" shall mean each Person who is a Holder of shares of Common Stock
that constitute Transfer Restricted Securities on the January 1 or July 1
immediately preceding the relevant Liquidated Damages Payment Date.
"REGISTRATION DEFAULT": As defined in Section 3(a) hereof.
"SECURITIES ACT": Securities Act of 1933, as amended.
"SHARE": Each share of Common Stock issued or issuable upon conversion,
redemption or repurchase of Debentures (including upon payment of any "make
whole" amount in connection with a redemption of Debentures pursuant to Section
3.01 of the Indenture).
"SHELF FILING DEADLINE": As defined in Section 2(a)(i) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 2(a)(i) hereof and,
for purposes of Sections 2(d), 2(e), 3(a) (other than clauses (i) and (ii)
thereof), 4, 5, 6 and 9(c) hereof, includes a Subsequent Shelf Registration
Statement.
"SUBSEQUENT SHELF REGISTRATION STATEMENT": As defined in Section 2(c)
hereof.
"SUSPENSION NOTICE": As defined in Section 4(c) hereof.
"SUSPENSION PERIOD": As defined in Section 4(b)(i) hereof.
"TIA": Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"TRANSFER RESTRICTED SECURITIES": Each Debenture (and Guarantee thereof)
and each Share until the earliest of:
(i) the date on which such Debenture or Share has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement;
(ii) the date on which such Debenture or Share is transferred in
compliance with Rule 144 under the Securities Act or may be sold or
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transferred by a person who is not an affiliate of the Company pursuant to
Rule 144 under the Securities Act (or any other similar provision then in
force) without any volume or manner of sale restrictions thereunder; or
(iii) the date on which such Debenture or Share ceases to be
outstanding (whether as a result of redemption, repurchase and
cancellation, conversion or otherwise).
"UNDERWRITTEN REGISTRATION": A registration in which Debentures or Shares
held by a Holder are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, the singular includes the plural,
and words in the plural include the singular.
2. Shelf Registration.
(a) The Company and the Guarantors shall:
(i) not later than 90 days after the date hereof (the "SHELF
FILING DEADLINE"), cause to be filed a registration statement
pursuant to Rule 415 under the Securities Act (the "SHELF
REGISTRATION STATEMENT"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities
held by Holders that have provided the information required
pursuant to the terms of Section 2(b) hereof;
(ii) use commercially reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the Commission
not later than 180 days after the date hereof (the "EFFECTIVENESS
TARGET DATE"); and
(iii) use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to
the extent necessary to ensure that (A) it is available for
resales by the Holders of Transfer Restricted Securities
entitled, subject to Section 2(b), to the benefit of this
Agreement and (B) conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations of
the Commission promulgated thereunder as announced from time to
time, for a period (the "EFFECTIVENESS PERIOD") until the
earliest of:
(A) two years following the last date of original
issuance of any of the Debentures;
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(B) the date when the Holders of Transfer Restricted
Securities are able to sell all such Transfer Restricted
Securities immediately without restriction pursuant to the
volume limitation provisions of Rule 144 under the
Securities Act; or
(C) the date when all of the Transfer Restricted
Securities have been sold either pursuant to the Shelf
Registration Statement or pursuant to Rule 144 under the
Securities Act or any similar provision then in force.
(b) At the time the Shelf Registration Statement is declared
effective, each Holder that became a Notice Holder on or prior to the
date that is fifteen (15) Business Days prior to such time of
effectiveness shall be named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of
Transfer Restricted Securities in accordance with applicable law. None
of the Company's or the Guarantors' securityholders (other than the
Holders of Transfer Restricted Securities) shall have the right to
include any of the Company's or any of the Guarantors' securities in
the Shelf Registration Statement.
(c) If the Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Transfer
Restricted Securities registered thereunder shall have been resold
pursuant thereto or shall have otherwise ceased to be Transfer
Restricted Securities), the Company and the Guarantors shall use their
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within
thirty (30) days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file
an additional Shelf Registration Statement covering all of the
securities that as of the date of such filing are Transfer Restricted
Securities (a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a
Subsequent Shelf Registration Statement is filed, the Company and the
Guarantors shall use their reasonable best efforts to cause the
Subsequent Shelf Registration Statement to become effective as
promptly as is practicable after such filing and to keep such
Registration Statement (or Subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
(d) The Company and the Guarantors shall supplement and amend the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company
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and the Guarantors for such Shelf Registration Statement, if required
by the Securities Act or as reasonably requested by the Initial
Purchasers or by the Trustee on behalf of the Holders of the Transfer
Restricted Securities covered by such Shelf Registration Statement.
(e) Each Holder agrees that if such Holder wishes to sell
Transfer Restricted Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance
with this Section 2(e) and Section 4(b). Each Holder wishing to sell
Transfer Restricted Securities pursuant to a Shelf Registration
Statement and related Prospectus agrees to deliver a Notice and
Questionnaire to the Company at least three (3) Business Days prior to
any intended distribution of Transfer Restricted Securities under the
Shelf Registration Statement. From and after the date the Shelf
Registration Statement is declared effective the Company and the
Guarantors shall, as promptly as practicable after the date a Notice
and Questionnaire is delivered, and in any event on or before the
later of (x) forty-five (45) Business Days after such delivery date
(but no earlier than ten (10) Business Days after effectiveness) or
(y) ten (10) Business Days after the expiration of any Suspension
Period in effect when the Notice and Questionnaire is delivered or put
into effect within forty-five (45) Business Days of such delivery
date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to
the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other
required document so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to
purchasers of the Transfer Restricted Securities in accordance
with applicable law and, if the Company or the Guarantors shall
file a post-effective amendment to the Shelf Registration
Statement, use commercially reasonable efforts to cause such
post-effective amendment to be declared effective under the
Securities Act as promptly as is practicable, but in any event by
the date (the "AMENDMENT EFFECTIVENESS DEADLINE DATE") that is
sixty (60) days after the date such post effective amendment is
required by this clause to be filed:
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(e)(i); and
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(iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 2(e)(i);
provided that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Suspension Period in accordance with Section
4(b). Notwithstanding anything contained herein to the contrary, (i) neither the
Company nor the Guarantors shall be under any obligation to name any Holder that
is not a Notice Holder as a selling securityholder in any Shelf Registration
Statement or related Prospectus and (ii) the Amendment Effectiveness Deadline
Date shall be extended by up to ten (10) Business Days from the expiration of a
Suspension Period (and neither the Company nor any of the Guarantors shall incur
any obligation to pay Liquidated Damages during such extension) if such
Suspension Period shall be in effect on the Amendment Effectiveness Deadline
Date.
3. Liquidated Damages.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness
Target Date;
(iii) the Company or the Guarantors have failed to perform
its obligations set forth in Section 2(e) within the time periods
required therein;
(iv) any post-effective amendment to a Shelf Registration
Statement filed pursuant to Section 2(e)(i) has not become
effective under the Securities Act on or prior to the Amendment
Effectiveness Deadline Date;
(v) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but,
during the Effectiveness Period, shall thereafter cease to be
effective or fail to be usable for its intended purpose without
being succeeded within ten (10) Business Days by a post-effective
amendment to the Shelf Registration Statement, a supplement to
the Prospectus or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that cures
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such failure and, in the case of a post-effective amendment, is
itself immediately declared effective; or
(vi) the Shelf Registration Statement is filed and declared
effective but, during the Effectiveness Period, shall thereafter
cease to be effective or fail to be usable for its intended
purpose and (A) prior to or on the thirtieth (30th) day or the
forty-fifth (45th) day, as the case may be, of any Suspension
Period, such suspension has not been terminated or (B) Suspension
Periods exceed an aggregate of 120 days in any 360 day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"REGISTRATION DEFAULT"), the Company and the Guarantors hereby jointly and
severally agree to pay interest ("LIQUIDATED DAMAGES"), with respect to the
Transfer Restricted Securities from and including the day following the
Registration Default to (but excluding) the earlier of (1) the day on which the
Registration Default has been cured and (2) the date the Shelf Registration
Statement is no longer required to be kept effective as set out below:
(A) in respect of the Debentures, to each holder of
Debentures accruing at a rate of, (x) with respect to the
first ninety (90)-day period during which a Registration
Default shall have occurred and be continuing, equal to
0.25% per annum of the outstanding principal amount thereof,
and (y) with respect to the period commencing on the
ninety-first (91st) day following the day on which the
Registration Default shall have occurred and be continuing,
equal to 0.50% per annum of the outstanding principal amount
thereof; provided that in no event shall Liquidated Damages
accrue at a rate per year exceeding 0.50% of the outstanding
principal amount thereof;
(B) in respect of the Shares, to each holder of a Share
accruing at a rate of (x) with respect to the first ninety
(90)-day period during which a Registration Default shall
have occurred and be continuing, equal to 0.25% per annum of
the then-applicable Conversion Price, and (y) with respect
to the period commencing on the ninety-first (91st) day
following the day the Registration Default shall have
occurred and be continuing, equal to 0.50% per annum of the
then-applicable Conversion Price; provided that in no event
shall Liquidated Damages accrue at a rate per year exceeding
0.50% of the then-applicable conversion price.
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(b) All accrued Liquidated Damages shall be paid in arrears to Record
Holders by the Company and the Guarantors on each Liquidated Damages
Payment Date. Upon the cure of all Registration Defaults relating to any
particular Debenture or Share, the accrual of Liquidated Damages with
respect to such Debenture or Share will cease.
(c) If the Debentures are surrendered for conversion during a
Registration Default, the Record Holders of the Debentures so surrendered
for conversion will receive on the settlement date all accrued and unpaid
Liquidated Damages with respect to such Debentures as provided in Section
3(a)(A) hereof to (but excluding) the conversion date relating to the
settlement date and thereafter will receive Liquidated Damages on the
Shares issued on conversion as provided in Section 3(a)(B) hereof.
All obligations of the Company and the Guarantors set forth in this Section
3 that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive monetary
remedy available to the Holders of Transfer Restricted Securities for each
Registration Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company
and the Guarantors shall comply with all the provisions of Section 4(b)
hereof and shall use commercially reasonable efforts to effect such
registration to permit the sale of the Transfer Restricted Securities, and
pursuant thereto, shall as expeditiously as possible prepare and file with
the Commission a Shelf Registration Statement relating to such registration
on any appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company and the Guarantors shall:
(i) Subject to any notice by the Company or any of the Guarantors
in accordance with this Section 4(b) of the existence of any fact or
event of the kind described in Section 4(b)(iii)(D), use commercially
reasonable efforts to keep the Shelf Registration Statement
continuously effective during the Effectiveness Period; and upon the
occurrence of any event that would cause the Shelf Registration
Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and
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usable for resale of Transfer Restricted Securities during the
Effectiveness Period, file promptly an appropriate amendment to the
Shelf Registration Statement, a supplement to the Prospectus or a
report filed with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either clause
(A) or (B), use commercially reasonable efforts to cause such
amendment to be declared effective and the Shelf Registration
Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter; except that
notwithstanding the foregoing, the Company may suspend the
effectiveness of the Shelf Registration Statement (or the use of the
Prospectus that is part of the Shelf Registration Statement) by
written notice to the Holders for a period not to exceed an aggregate
of thirty (30) days in any ninety (90)-day period; however, if such
fact or event relates to a previously undisclosed proposed or pending
material business transaction, the disclosure of which would impede
the Company's ability to consummate such transaction, the Company may
extend the period during which it may suspend the Registration
Statement to a period not to exceed forty-five (45) days in any ninety
(90)-day period (each such period, a "SUSPENSION PERIOD") upon:
(x) the occurrence or existence of any fact or the happening of
any event as a result of which the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein would, in the Company's judgment,
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 not misleading; or
(y) the occurrence or existence of any corporate development
that, in the Company's judgment, makes it appropriate to suspend the
effectiveness of the Shelf Registration Statement;
provided that the Company and the Guarantors will use their reasonable
best efforts to ensure that the use of the Prospectus may be resumed
(A) in the case of clause (x) above, as soon as, in the judgment of
the Company, public disclosure of such fact or event would not be
prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as
practicable thereafter and (B) in the case of clause (y) above, as
soon as, in the judgment of the Company, such suspension is no longer
appropriate; provided, however, that Suspension Periods shall not
exceed an aggregate of 120 days in any 360-day period, and in no event
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shall the Company be required to specify in the written notice to the
Holders the nature of the fact or event giving rise to the Suspension
Period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep the Shelf Registration Statement effective during
the Effectiveness Period; cause the Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully
with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of
the Securities Act with respect to the disposition of all Debentures
or Shares covered by the Shelf Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in the Shelf
Registration Statement or supplement to the Prospectus.
(iii) Advise the selling Holders promptly and, if requested by
such selling Holders, to confirm such advice in writing, except as
provided in clause (D) below:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective,
(B) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or to the
Prospectus included therein or for additional information,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding
purposes, or
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that requires the Company
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to make changes in the Shelf Registration Statement or the
Prospectus contained therein, in order that such Shelf
Registration Statement or Prospectus does not contain an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein (in the cased of the Prospectus, in light of the
circumstances under which they were made) not misleading.
If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf Registration Statement, or
any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company and the Guarantors shall use
their reasonable best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time and will provide to each
Holder who is named in the Shelf Registration Statement prompt notice
of the withdrawal of any such order.
(iv) Make available at reasonable times for inspection by one or
more representatives of the selling Holders, designated in writing by
a Majority of Holders whose Transfer Restricted Securities are
included in the Shelf Registration Statement, and any attorney or
accountant retained by such selling Holders, all financial and other
records, pertinent corporate documents and properties of the Company
and the Guarantors as shall be reasonably necessary to enable them to
conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act, and cause the Company's and the Parent's
respective officers, directors, managers and employees to supply all
information reasonably requested by any such representative or
representatives of the selling Holders, attorney or accountant in
connection therewith; provided, however, that neither the Company nor
the Guarantors shall have any obligation to deliver information to any
selling Holder or representative, attorney or accountant pursuant to
this Section 4(b)(iv) unless such selling Holder or representative,
attorney or accountant shall have executed and delivered a
confidentiality agreement in a form acceptable to the Company relating
to such information.
(v) If requested by any selling Holders, promptly incorporate in
the Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information
as such selling Holders may reasonably request to have included
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therein, including, without limitation, information relating to the
"PLAN OF DISTRIBUTION" of the Transfer Restricted Securities.
(vi) Furnish to each selling Holder upon its request, without
charge, at least one copy of the Shelf Registration Statement, as
first filed with the Commission, and of each amendment thereto (and
any documents incorporated by reference therein or exhibits thereto
(or exhibits incorporated in such exhibits by reference) as such
Holder may request).
(vii) Deliver to each selling Holder, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and
any amendment or supplement thereto as such Persons reasonably may
request; subject to any notice by the Company or the Guarantors in
accordance with this Section 4(b) of the existence of any fact or
event of the kind described in Section 4(b)(iii)(D), the Company and
the Guarantors hereby consent to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto.
(viii) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions in the United States as the selling Holders may
reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that neither the Company nor the
Guarantors shall be required (A) to register or qualify as a foreign
corporation or a dealer of securities where it is not now so qualified
or to take any action that would subject it to the service of process
in any jurisdiction where it is not now so subject or (B) to subject
itself to general or unlimited service of process or to taxation in
any such jurisdiction if they are not now so subject.
(ix) Cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends (unless required by applicable securities laws); and enable
such Transfer Restricted Securities to be in such denominations and
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registered in such names as the Holders may request at least two
Business Days before any sale of Transfer Restricted Securities.
(x) Use their reasonable best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to
be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Transfer
Restricted Securities.
(xi) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use their reasonable best efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they are made, not misleading.
(xii) Obtain CUSIP numbers for all Transfer Restricted Securities
not later than the effective date of the Shelf Registration Statement
and provide the Trustee under the Indenture with certificates for the
Debentures that are in a form eligible for deposit with The Depository
Trust Company.
(xiii) Cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be retained in
accordance with the rules and regulations of the NASD.
(xiv) Otherwise use their reasonable best efforts to comply with
all applicable rules and regulations of the Commission and all
reporting requirements under the rules and regulations of the Exchange
Act.
(xv) Cause the Indenture to be qualified under the TIA not later
than the effective date of the Shelf Registration Statement required
by this Agreement, and, in connection therewith, cooperate with the
Trustee and the holders of Debentures to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its
15
reasonable best efforts to cause the Trustee thereunder to execute all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner.
(xvi) Cause all Shares covered by the Shelf Registration
Statement to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which Common
Stock is then listed or quoted.
(xvii) Provide to each Holder upon written request each document
filed with the Commission pursuant to the requirements of Section 13
and Section 15 of the Exchange Act after the effective date of the
Shelf Registration Statement, unless such document is available
through the Commission's EDGAR system.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "SUSPENSION NOTICE") from the
Company of the existence of any fact or occurrence of any event of the kind
described in Section 4(b)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
Shelf Registration Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xi) hereof; or
(ii) such Holder is advised in writing by the Company that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference
in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Each Holder agrees by acquisition of a Transfer Restricted
Security, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Shelf Registration Statement; or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section
2(e) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next
sentence. Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information
16
previously furnished to the Company by such Notice Holder not misleading
and any other information regarding such Notice Holder and the distribution
of such Transfer Restricted Securities as the Company may from time to time
reasonably request in writing. Any sale of any Transfer Restricted
Securities by any Holder shall constitute a representation and warranty by
such Holder that the information relating to such Holder and its plan of
distribution is as set forth in the Prospectus delivered by such Holder in
connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating
to or provided by such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material
fact relating to or provided by such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made not misleading.
5. Registration Expenses.
All expenses incident to the Company's and the Guarantors' performance of
or compliance with this Agreement shall be borne by the Company and the
Guarantors regardless of whether a Shelf Registration Statement becomes
effective, including, without limitation:
(i) all registration and filing fees and expenses (including filings
made with the NASD);
(ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of Prospectuses and
certificates for the Shares to be issued upon conversion of the Debentures)
and the Company's and the Guarantor's expenses for messenger and delivery
services and telephone;
(iv) all fees and disbursements of counsel to the Company and the
Guarantors;
(v) all application and filing fees in connection with listing (or
authorizing for quotation) the Shares on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company and the Guarantors.
17
The Company and the Guarantors shall bear their internal expenses
(including, without limitation, all salaries and expenses of their officers and
employees performing legal, accounting or other duties), the expenses of any
annual audit and the fees and expenses of any Person, including special experts,
retained by the Company and the Guarantors.
6. Indemnification and Contribution.
(a) The Company and the Guarantors agree to, jointly and severally,
indemnify and hold harmless each Holder of Transfer Restricted Securities
covered by the Shelf Registration Statement (including each Initial
Purchaser), and its directors, officers, and employees and each person, if
any, who controls any such Holder within the meaning of the Securities Act
or the Exchange Act (each, an "INDEMNIFIED HOLDER"), against any loss,
claim, damage, liability or expense, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to resales of the Transfer Restricted
Securities), to which such Indemnified Holder may become subject, insofar
as any such loss, claim, damage, liability or action arises out of, or is
based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement as
originally filed or in any amendment thereof, in any Prospectus, or in
any amendment or supplement thereto or (B) any blue sky application or
other document or any amendment or supplement thereto prepared or
executed by the Company or any of the Guarantors (or based upon
written information furnished by or on behalf of the Company or any of
the Guarantors expressly for use in such blue sky application or other
document or amendment or supplement) filed in any jurisdiction
specifically for the purpose of qualifying any or all of the Transfer
Restricted Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a
"BLUE SKY APPLICATION"); or
(ii) the omission or alleged omission to state therein any
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,
and agrees to reimburse each Indemnified Holder promptly upon demand for any
legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Company and the Guarantors shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
18
alleged omission made in reliance upon and in conformity with written
information furnished to the Company and the Guarantors by or on behalf of such
Holder (or its related Indemnified Holder) specifically for use therein;
provided, further, that with respect to any such untrue statement or alleged
untrue statement in or omission or alleged omission from any preliminary
prospectus contained in the Shelf Registration Statement, the indemnity
agreement contained in this paragraph shall not inure to the benefit of any
Indemnified Holder to the extent that any such loss, claim, damage or liability
of or with respect to such Indemnified Holder to any person results from the
fact that both (i) a copy of the final prospectus contained in the Shelf
Registration Statement (excluding any documents incorporated by reference
therein) was not sent or given to such person, at or prior to the written
confirmation of the sale of such Transfer Restricted Securities to such person,
and (ii) the untrue statement in or omission from such preliminary prospectus
contained in the Shelf Registration Statement was corrected in such final
prospectus unless, in either case, such failure to deliver the final prospectus
contained in the Shelf Registration Statement was a result of non-compliance by
the Company or the Guarantors with the provisions of Section 4 hereof. The
foregoing indemnity agreement is in addition to any liability which the Company
or the Guarantors may otherwise have.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company and the Guarantors, their respective directors,
officers and employees and each person, if any, who controls the Company or
any of the Guarantors within the meaning of the Securities Act or the
Exchange Act to the same extent as the foregoing indemnity from the Company
and the Guarantors to each such Holder, but only with reference to written
information relating to such Holder furnished to the Company and the
Guarantors by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
set forth in this Section shall be in addition to any liabilities which any
such Holder may otherwise have. In no event shall any Holder, its
directors, officers or any person who controls such Holder be liable or
responsible for any amount in excess of the amount by which the total
amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Shelf Registration Statement exceeds
(i) the amount paid by such Holder for such Transfer Restricted Securities
and (ii) the amount of any damages that such Holder, its directors,
officers or any person who controls such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.
(i) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
19
made against the indemnifying party under this Section 6, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 6 except to the extent it has been materially prejudiced
by such failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 6 for
any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the Holders shall have
the right to employ a single counsel to represent jointly the Holders
and their officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the Holders against the Company or the
Guarantors under this Section 6 if the Holders seeking indemnification
shall have been advised by legal counsel that there may be one or more
legal defenses available to such Holders and their respective
officers, employees and controlling persons that are different from or
additional to those available to the Company or the Guarantors, and in
that event, the fees and expenses of such separate counsel shall be
paid by the Company or the Guarantors.
(c) The indemnifying party under this Section shall not be liable for
any settlement of any proceeding effected without its written consent,
which shall not be withheld unreasonably, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by Section 6 hereof,
the indemnifying party 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 thirty (30) days after receipt by such
20
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement,
compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent (x) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such action,
suit or proceeding and (y) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability (or action in respect
thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other, or
(ii) if the allocation provided by Section (6)(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in Section 6(d)(i)
but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with
the statements or omissions or alleged statements or alleged omissions
that resulted in such loss, claim, damage or liability (or action in
respect thereof), as well as any other relevant equitable
considerations.
The relative benefits received by the Company and the Guarantors on the one hand
and a Holder on the other with respect to such offering and such sale shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Debentures purchased under the Purchase Agreement (before deducting
expenses) received by the Company and the Guarantors, on the one hand, bear to
the total proceeds received by such Holder with respect to its sale of Transfer
Restricted Securities on the other. The relative fault of the parties shall be
determined by reference to whether the untrue or alleged untrue statement of a
21
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Guarantors on the one
hand or the Holders on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Guarantors and each Holder agree that it
would not be just and equitable if the amount of contribution pursuant to this
Section 6(d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this paragraph (d).
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 6 shall be deemed to include, for purposes of this Section 6, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of any 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 Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint.
(e) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder,
the Company, or the Guarantors or any of the officers, directors or
controlling persons referred to in Section 6 hereof, and will survive the
sale by a Holder of Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company and the Guarantors agree with each
Holder, for so long as any Transfer Restricted Securities remain outstanding and
during any period in which the Company (i) is not subject to Section 13 or 15(d)
of the Exchange Act, to make available, upon request of any Holder, to such
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is
subject to Section 13 or 15 (d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
22
8. No Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder.
9. Miscellaneous.
(a) Remedies. The Company and the Guarantors acknowledge and agree
that any failure by the Company or the Guarantors to comply with their
obligations under Section 2 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely, and that, in the event of any such failure, the
Initial Purchasers or any Holder may obtain such relief as may be required
to specifically enforce the Company's and the Guarantors' obligations under
Section 2 hereof. The Company and the Guarantors further agree to waive the
defense in any action for specific performance that a remedy at law would
be adequate.
(b) Actions Affecting Transfer Restricted Securities. Neither the
Company nor the Guarantors shall, directly or indirectly, take any action
with respect to the Transfer Restricted Securities as a class that would
adversely affect the ability of the Holders of Transfer Restricted
Securities to include such Transfer Restricted Securities in a registration
undertaken pursuant to this Agreement.
(c) No Inconsistent Agreements. The Company and the Guarantors have
not, as of the date hereof, entered into, nor shall either of them, on or
after the date hereof, enter into, any agreement with respect to their
securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. In
addition, the Company and the Guarantors shall not on or after the date
hereof grant to any of their securityholders (other than the Holders of
Transfer Restricted Securities in such capacity) the right to include any
of their securities in the Shelf Registration Statement provided for in
this Agreement other than the Transfer Restricted Securities.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of a Majority of Holders; provided, however, that with
respect to any matter that directly or indirectly adversely affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), (1) a waiver
23
or consent to depart from the provisions hereof, with respect to a matter,
which relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Shelf Registration Statement and does not directly
or indirectly adversely affect the rights of other Holders, may be given by
the Majority of Holders, determined on the basis of Debentures or Shares
being sold rather than registered under such Shelf Registration Statement,
and (2) this Agreement may be amended or supplemented without notice to or
consent of any Holder to (i) cure any ambiguity or omission or to correct
or supplement any provision contained herein that may be defective or
inconsistent with any other provisions contained herein, or (ii) add to the
covenants of the Company or the Guarantors such further covenants,
restrictions or conditions for the benefit of the Holders.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class
mail (registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the Common
Stock, as the case may be; and
(ii) if to the Company or the Guarantors, initially at its
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three (3)
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(f) Third Party Beneficiaries. The Holders shall be the third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect their
rights or the rights of Holders hereunder.
(g) Successors and Assigns. This Agreement shall be binding upon the
Company and the Guarantors and their respective successors and assigns.
24
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(i) Debentures Held by the Company or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities
held by the Company or its Affiliates (other than subsequent Holders if
such subsequent Holders are deemed to be Affiliates solely by reason of
their holding of such Debentures) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(j) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(k) Governing Law. This Agreement shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of the State of New York (including
Section 5-1401 of the New York General Obligations Law or any successor to
such statute).
(l) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(m) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Company and the Guarantors with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
GRAFTECH INTERNATIONAL LTD.,
By /s/ Karen G. Narwold
--------------------------------
Name: Karen G. Narwold
Title:Vice President, General
Counsel, Human Resources and
Secretary
GRAFTECH FINANCE INC.,
By /s/ Karen G. Narwold
--------------------------------
Name: Karen G. Narwold
Title:Vice President, General
Counsel, Human Resources and
Secretary
GRAFTECH GLOBAL ENTERPRISES INC.,
By /s/ Karen G. Narwold
--------------------------------
Name: Karen G. Narwold
Title:Vice President, General
Counsel, Human Resources and
Secretary
UCAR CARBON COMPANY INC.,
By /s/ Karen G. Narwold
--------------------------------
Name: Karen G. Narwold
Title:Vice President, General
Counsel, Human Resources and
Secretary
26
UCAR INTERNATIONAL TRADING INC.,
By /s/ Karen G. Narwold
--------------------------------
Name: Karen G. Narwold
Title:Vice President, General
Counsel, Human Resources and
Secretary
UCAR CARBON TECHNOLOGY LLC,
By /s/ Karen G. Narwold
--------------------------------
Name: Karen G. Narwold
Title:Vice President, General
Counsel, Human Resources and
Secretary
27
The foregoing Agreement is hereby
confirmed and accepted as of
the date first written above.
J.P. MORGAN SECURITIES INC.,
Acting on behalf of itself and
the several Initial Purchasers
By /s/ Kevin Kulak
-------------------------------
Name: Kevin Kulak
Title:Vice President