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AMENDMENT NO. 1 TO THE STOCKHOLDER'S AGREEMENT
BETWEEN
UCAR INTERNATIONAL INC. AND GRAFTECH INC.
The Stockholder's Agreement between UCAR International Inc. and
Graftech Inc. (the "Stockholder's Agreement") is hereby amended, in accordance
with the following:
1. The following Section 3.3 is hereby added:
"3.3 NO RESTRICTIONS OR OBLIGATIONS. Nothing contained in this Section
3 shall restrict UCAR from purchasing securities of the Company other than as
provided in this Section 3 or obligate UCAR to purchase securities of the
Company under this Section 3."
2. Section 4.4(a) is hereby amended in its entirety to read as
follows:
"(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration
of any securities of the Company under the Securities Act pursuant to Section
4.1 or 4.2 (which includes, for purposes of this Section 4, the IPO), the
Company will indemnify and hold harmless, and will, if so requested by UCAR,
agree in any underwriting agreement entered into in connection with such
registration that it will indemnify and hold harmless, UCAR, each Affiliate of
UCAR and their respective directors, officers, employees and general and limited
partners (and the directors, officers, employees, affiliates and controlling
Persons thereof), each Person who participates as an underwriter in the offering
or sale of securities covered by such registration offered or sold by UCAR and
each other Person, if any, who controls UCAR or any such underwriter within the
meaning of the Securities Act (collectively, the "Indemnified Parties") against
any and all losses, claims, damages or liabilities, joint or several, and
expenses to which such Indemnified Party may become subject under the Securities
Act, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof, whether or not such
Indemnified Party is a party thereto) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement relating to such registration, any preliminary, final
or summary prospectus contained therein, any amendment or supplement thereto, or
any document incorporated therein by reference or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made or (iii) any breach or violation or
alleged breach or violation of any representation, warranty or agreement made by
the Company contained in such underwriting agreement (including representations,
warranties and agreements made jointly, or jointly and severally, with UCAR or
others, which representations, warranties and agreements shall, for purposes
hereof, be deemed and construed to have been made solely and exclusively by the
Company) and the Company will reimburse such Indemnified Party for any legal or
other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, that the Company shall not be liable to any Indemnified Party in any
such case to the extent that any such loss, claim, damage, liability, action,
proceeding or expense arises out of or is based upon any untrue statement or
alleged
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untrue statement or omission or alleged omission made in such registration
statement, in any such preliminary, final or summary prospectus, in any
amendment or supplement thereto, or in any document incorporated therein by
reference in reliance upon and in conformity with written information with
respect to such Indemnified Party furnished to the Company by such Indemnified
Party expressly for use in the preparation thereof (and, for purposes of this
Section 4, no information shall be deemed to have been so provided by UCAR,
including information resulting from participation by directors, officers or
employees of UCAR in meetings or document reviews or information derived from
UCAR's accounting, business or other records or files, unless it specifically
refers to this Section 4.4(a) and specifically states that it has been so
provided); and provided, further, that the Company will not be liable to any
Person who participates as an underwriter in the offering or sale of such
securities or any other Person, if any, who controls such underwriter within the
meaning of the Securities Act, under the indemnity agreement in this Section
4.4, with respect to any preliminary prospectus, final prospectus or final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of such underwriter or controlling
Person results from the fact that such underwriter sold such securities to a
Person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final prospectus or of the final
prospectus as then amended or supplemented, whichever is most recent, if the
Company has previously furnished copies thereof to such underwriter. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Party and shall survive the Transfer of
such securities by UCAR".
3. Section 4.4(f) is hereby amended by adding the following sentence:
"Notwithstanding the preceding sentences of this Subsection 4.4(f), no provision
of an underwriting agreement shall supersede or replace this Section 4.4 as
between UCAR and the Company unless it specifically mentions this Subsection
4.4(f) and specifically provides that it shall so supersede or replace this
Section 4.4."
4. Section 7.2 is hereby amended to read in its entirety as follows:
"7.2 FINANCIAL INFORMATION. The Company shall provide and
shall cause its Subsidiaries to provide all accounting, financial, business and
other information to UCAR when and as UCAR may request so as to enable UCAR to,
among other things, comply with orders and agreements, prepare financial
statements, budgets, projections and analyses, have financial statement audits
and reviews completed, comply with due diligence requests from existing or
prospective lenders, investors and strategic partners, comply with public
reporting obligations and perform customary investor relations activities,
pursue and defend claims, lawsuits and investigations, and any other proper
purpose. The Company shall, when and as requested by UCAR, fully and timely
cooperate with UCAR in undertaking and completing any and all of the foregoing
activities. The obligations of the Company under this Section 7.2 shall not
apply as to information relating to periods after UCAR ceases to own or hold
directly or indirectly 20% or more of the then outstanding shares of Common
Stock. For purposes of this Section 7.2, the term "information" shall include
copies of and access to books, records, files, accounts, facilities and premises
and interviews and discussions with, certifications by and reviews of
information
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(within the meaning hereof) by directors, officers and employees of the
Company and its Subsidiaries."
5. The following Section 7.6 is hereby added:
"7.6 UCAR AND POLICIES. The Company shall adopt and observe
generally accepted accounting principles as applied by UCAR from time to time,
shall adopt and observe tax accounting practices as applied and tax elections
made by UCAR from time to time and shall adopt and observe UCAR's corporate
policies and procedures as in effect from time to time (including corporate
policies and procedures relating to health and safety, records retention,
business ethics, xxxxxxx xxxxxxx, environmental protection, authorization
limits, authorization approvals, budgeting and planning, and business
reporting), in each case unless otherwise approved in writing by UCAR. The
obligation of the Company under this Section 7.6 shall terminate at such time as
UCAR ceases to own or hold directly or indirectly 20% or more of the then
outstanding shares of Common Stock."
6. The definition of "Graftech Business" in Section 1.1 is hereby
amended to read in its entirety as follows:
"GRAFTECH BUSINESS" shall mean the development, manufacture
and sale of natural, acid-treated and flexible graphite products."
7. Section 3.1 is hereby amended to read in its entirety as follows:
"3.3 GENERAL. So long as UCAR owns or holds directly or
indirectly 20% or more of the then outstanding shares of Common Stock, UCAR
shall have the right to receive, 30 days prior to any issuance by the Company
(an "Issuance") of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for shares of Common Stock (other than (i)
non-qualified employee stock options which cannot and do not vest prior to the
third anniversary of the effective date of the registration statement filed with
the SEC relating to the IPO (the "Effective Date"), (ii) non-qualified director
stock options which cannot and do not vest prior to the earlier of such third
anniversary or that time at which UCAR ceases to own or hold directly or
indirectly 20% or more of the then outstanding shares of Common Stock
(collectively with such non-qualified employee stock options, "Permitted
Options") or (iii) in connection with the IPO) to any Person (a "Recipient")
notification in writing of the proposed Issuance to the proposed Recipient and
shall have the right (the "Preemptive Right") to subscribe for and purchase
additional shares of Common Stock at the same price and upon the same terms and
conditions as those to be issued in the Issuance to the Recipient such that,
immediately after giving effect to the Issuance to the Recipient and exercise of
the Preemptive Right, the shares of Common Stock owned directly or indirectly by
UCAR (rounded to the nearest whole share) shall represent the same percentage of
the aggregate number of shares of Common Stock outstanding on a fully diluted
basis as was owned directly or indirectly by UCAR immediately prior to the
Issuance to the Recipient. The Company shall take and cause to be taken any and
all necessary or appropriate actions to fully observe and perform this Section
3. Any Issuance in breach or violation of this Section 3 shall be void."
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8. Section 8.1(a) is hereby deleted in its entirety.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Amendment No. 1 as of the date of the Stockholder's Agreement.
UCAR INTERNATIONAL INC.
By:
Name:
Title:
GRAFTECH INC.
By:
Name:
Title:
