[Draft--3/28/97]
6,400,000 Shares
UCAR International Inc.
Common Stock ($0.01 par value)
SUBSCRIPTION AGREEMENT
London, England
April [ ], 1997
TO: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇, READ & CO. INC.
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
NIKKO EUROPE PLC
c/o Credit Suisse First Boston Limited ("CSFBL")
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Dear Sirs:
1. Introductory. Blackstone Capital Partners II Merchant Banking Fund L.P.
("BCP"), Blackstone Offshore Capital Partners II L.P. ("BOCP") and Blackstone
Family Investment Partnership II L.P. ("BFIP", and together with BCP and BOCP,
the "Selling Stockholders") propose severally to sell (the "International
Offering") to the several managers named in Schedule A hereto (the "Managers"),
an aggregate of 1,280,000 outstanding shares (the "International Firm
Securities") of the Common Stock, $0.01 par value per share (the "Securities"),
of UCAR International Inc., a Delaware corporation ("UCAR"). The Selling
Stockholders also propose severally to sell to the Managers, at the option of
the Underwriters (as defined below) and the Managers, an aggregate of not more
than 660,958 additional outstanding Securities (the "Optional Securities") as
set forth below. The International Firm Securities and the Optional Securities
that may be sold to the Managers (the "International Optional Securities") are
herein collectively called the "International Securities".
It is understood that UCAR and the Selling Stockholders are concurrently
entering into an Underwriting Agreement, dated the date hereof (the
"Underwriting Agreement"), with Credit Suisse First Boston Corporation ("CSFBC")
and the other United States underwriters listed in Schedule A thereto (together
with CSFBC, the "U.S. Underwriters") relating to the concurrent offering and
sale (the "U.S. Offering") by the Selling Stockholders of an aggregate of
5,120,000 Securities (the "U.S. Firm Securities", which together with the
Optional Securities that may be sold to the U.S. Underwriters (the "U.S.
Optional Securities") are hereinafter called the "U.S. Securities") in the
United States and Canada. The U.S. Firm Securities and the International Firm
Securities are collectively referred to as the "Firm Securities". The
International Securities and the U.S. Securities are collectively referred to as
the "Offered Securities". To provide for the coordination of their activities,
the U.S. Underwriters and the Managers have entered into an Agreement Between
U.S. Underwriters and Managers which permits them, among other things, to sell
the Offered Securities to each other for purposes of resale.
2. Representations and Warranties of UCAR and the Selling Stockholders.
(a) UCAR represents and warrants to, and agrees with, the several Managers as of
the date hereof and as of each Closing Date (as defined below) that:
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(i) A registration statement (No. 333-23073) relating to the Offered
Securities has been filed with the Securities and Exchange Commission (the
"Commission"). The registration statement contains two prospectuses to be
used in connection with the offering and sale of the Offered Securities:
the U.S. prospectus, to be used in connection with the U.S. Offering, and
the international prospectus, to be used in connection with the
International Offering. The international prospectus is identical to the
U.S. prospectus except for the front and back covers, pages 2 and 3, the
information appearing under "Subscription and Sale" on pages 33 to 35 and
"Legal Matters" on page 35 and the deletion of the information under
"Notice to Canadian Residents" on pages 35 to 36 of the U.S. prospectus and
except that certain information has been reordered in the international
prospectus. The registration statement either (A) has been declared
effective under the Securities Act of 1933 (the "Act") and is not proposed
to be amended or (B) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "initial
registration statement") has been declared effective, either (A) an
additional registration statement relating to the Offered Securities (the
"additional registration statement") may have been filed with the
Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so
filed, has become effective upon filing pursuant to such Rule and the
Offered Securities all have been duly registered under the Act pursuant to
the initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If UCAR does not propose to amend the initial
registration statement or, if an additional registration statement has been
filed and UCAR does not propose to amend it, and if any post-effective
amendment to either such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the most
recent amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in the case of
the additional registration statement, Rule 462(b). For purposes of this
Agreement, "Effective Time" with respect to the initial registration
statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (A) if UCAR has
advised the Managers that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c), or
(B) if UCAR has advised the Managers that it proposes to file an amendment
or post-effective amendment to such registration statement, the date and
time as of which such registration statement, as amended by such amendment
or post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but UCAR has advised
the Managers that it proposes to file one, "Effective Time" with respect to
such additional registration statement means the date and time as of which
such registration statement is filed and becomes effective pursuant to Rule
462(b). "Effective Date" with respect to the initial registration statement
or the additional registration statement (if any) means the date of the
Effective Time thereof. The initial registration statement, as amended at
its Effective Time, including all material incorporated by reference
therein and including all information (if any) contained in the additional
registration statement and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration statement
pursuant to the General Instructions of the Form on which it is filed and
including all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b)
("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all
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information (if any) deemed to be a part of the additional registration
statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter
referred to as the "Additional Registration Statement". The Initial
Registration Statement and the Additional Registration Statement are
hereinafter referred to collectively as the "Registration Statements" and
individually as a "Registration Statement". The form of U.S. prospectus,
together with the form of international prospectus, relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such
filing is required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "Prospectus". No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act
and the applicable rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, (B) on the Effective Date of
the Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the requirements of
the Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or will
not omit, to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement, each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
If the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement and
the Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations and neither of such documents will
include any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and no Additional Registration Statement has been or
will be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or Prospectus based upon written
information furnished to UCAR by any Manager through CSFBL specifically for
use therein (the "Excluded Information"), and the Managers confirm that the
Excluded Information provided by them is correct. The parties acknowledge
and agree that the Excluded Information consists solely of: the last
paragraph at the bottom of the front cover page concerning the terms of the
International Offering by the Managers, the legend concerning transactions
that stabilize, maintain or otherwise affect the price of the Securities on
the inside front cover page and the information contained in the third
paragraph, the sixth paragraph, the seventh paragraph, the eighth
paragraph, the ninth paragraph, the thirteenth paragraph and the fourteenth
paragraph appearing under the caption Subscription and Sale in the
international prospectus.
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(iii) UCAR has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, is
duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification,
except where the failure to so qualify would not have, singularly or in the
aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of UCAR and its
subsidiaries taken as a whole (a "Material Adverse Effect") and has all
corporate power and authority necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged as
described in the Prospectus.
(iv) Each subsidiary of UCAR and EMSA (Pty.) Ltd. ("EMSA") has been
duly incorporated and is validly existing as a corporation in good standing
(or the equivalent, in the case of any foreign subsidiary) under the laws
of the jurisdiction of its incorporation, is duly qualified to do business
and is in good standing (or the equivalent, in the case of any foreign
subsidiary) in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification,
except where the failure to so qualify or be in good standing (or the
equivalent, in the case of any foreign subsidiary) would not have,
singularly or in the aggregate, a Material Adverse Effect and has all
corporate power and authority necessary to own or hold its respective
properties and to conduct the businesses in which it is engaged as
described in the Prospectus.
(v) UCAR has an authorized capitalization as set forth in the
Prospectus, and all of the outstanding shares of capital stock of each of
UCAR, EMSA, Carbographite Limited ("CL") and any direct or indirect
subsidiary of UCAR (each, a "UCAR Group Member" and, collectively, the
"UCAR Group") have been (in the case of each of EMSA and CL, to the extent
of the shares owned directly or indirectly by UCAR) duly and validly
authorized and issued and are fully paid and non-assessable (or the
equivalent thereof under analogous foreign principles of corporate law).
(vi) UCAR owns all the outstanding shares of the capital stock of UCAR
Global Enterprises Inc. ("Global"); and, except as disclosed in the
Prospectus, Global owns, directly or indirectly, (1) all the outstanding
shares of capital stock of each of Global's subsidiaries (other than UCAR
Carbon S.A. and its subsidiaries, in respect of which Global indirectly
owns approximately 94% of the outstanding shares of its capital stock, UCAR
Mexicana, S.A. de C.V. and its subsidiaries in respect of which Global
indirectly owns more than 99% of the outstanding shares of its capital
stock, UCAR Holdings S.A., Itapira Brasil Investimentos E Participacoes
Ltd. and UCAR Limited, as to which qualifying shares totaling less than 1%
are held by nominees, UCAR Grafit OAO ("Grafit"), in respect of which
Global indirectly owns approximately 90% of the outstanding shares of its
capital stock, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ S.A.S. ("▇▇▇▇▇▇▇ ▇▇▇▇▇▇"), in respect of
which Global indirectly owns 70% of the outstanding shares of its capital
stock, and UCAR Elektroden GmbH ("Elektroden"), in respect of which Global
indirectly owns approximately 70% of the outstanding shares of its capital
stock), and (2) 50% of the outstanding shares of capital stock of EMSA and
CL, in each case, except as disclosed in the Prospectus, free and clear of
any lien, and, except for rights of first refusal on transfers of capital
stock of EMSA, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Elektroden and CL, there are no rights
granted to, or in favor of, any person to acquire any such capital stock,
any additional capital stock or any other securities of any such
subsidiary, EMSA or CL.
(vii) Each of this Agreement, the Underwriting Agreement and the Stock
Repurchase Agreement dated April [ ], 1997 (the "Stock Repurchase
Agreement"), among UCAR, the Selling Stockholders and Chase Equity
Associates, L.P. has been duly authorized and validly executed and
delivered by UCAR and, assuming due execution and delivery by the other
parties thereto, constitutes a valid and legally binding agreement of UCAR,
enforceable against UCAR in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws
5
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(viii) The execution, delivery and performance of this Agreement, the
Underwriting Agreement and the Stock Repurchase Agreement and the sale of
the Offered Securities and compliance with the terms and provisions hereof
and thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any agreement or
instrument to which UCAR is a party or by which UCAR is bound or to which
any of the properties of UCAR is subject, except where such breach,
violation or default (individually or in the aggregate) would not have a
Material Adverse Effect. UCAR has the corporate power and authority to
execute, deliver and perform this Agreement, the Underwriting Agreement and
the Stock Repurchase Agreement.
(ix) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between UCAR and any person granting such
person the right to require UCAR to file a registration statement under the
Act with respect to any securities of UCAR owned or to be owned by such
person or to require UCAR to include such securities in the securities
registered pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by UCAR under
the Act.
(x) KPMG Peat Marwick LLP are independent certified public accountants
with respect to the UCAR Group under Rule 101 of AICPA's Code of
Professional Conduct and its interpretations and rulings. The historical
financial statements (including the related notes) included in the
Prospectus comply in all material respects with the requirements applicable
to a registration statement on Form S-3 and have been prepared, and present
fairly in all material respects the financial position of the UCAR Group at
the respective dates indicated and the results of its operations and its
cash flows for the respective periods indicated, in accordance with
generally accepted accounting principles consistently applied throughout
such periods except as described in the notes to such financial statements;
and the financial information and financial data set forth (a) in the
Prospectus under the captions "Summary--Summary Financial and Operating
Data", "Capitalization" and "Selected Consolidated Financial Data", (b) in
Items 6, 8 and 10 of UCAR's Annual Report on Form 10-K for the year ended
December 31, 1996 (the "UCAR 10-K") and (c) in UCAR's Notice of Meeting and
Proxy Statement for the 1996 Annual Meeting of Stockholders (the "UCAR
Proxy") together in each case with the notes applicable thereto, are
derived from the accounting records of the UCAR Group and fairly present in
all material respects the data purported to be shown. The other historical
financial and statistical information and data included in the Prospectus
are, in all material respects, fairly presented.
(xi) There are no pending actions or suits or judicial, arbitral,
rule-making or other administrative or other proceedings to which any UCAR
Group Member is a party or of which any property or assets of any UCAR
Group Member is the subject which, singularly or in the aggregate, are
reasonably likely to have a Material Adverse Effect; and to the best of
UCAR's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(xii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required with respect to
UCAR for the consummation of the transactions contemplated by this
Agreement, the Underwriting Agreement or the Stock Repurchase Agreement in
connection with the sale or repurchase of the Offered Securities, except
such as have been obtained and made under the Act and such as may be
required under state securities laws or the requirements of the National
Association of Securities Dealers, Inc. ("NASD").
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(xiii) No UCAR Group Member (a) is in violation of its charter,
by-laws or other constituent documents, (b) is in default in any respect,
and no event has occurred which, with notice or lapse of time or both,
would constitute a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to which it
is a party or by which it is bound or to which any of its property or
assets is subject or (c) is in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject, except any violation or default under
clauses (b) or (c) that would not have a Material Adverse Effect.
(xiv) Each UCAR Group Member possesses all material licenses,
certificates, authorizations and permits issued by, and has made all
material declarations and filings with, the appropriate state, federal or
foreign regulatory agencies or bodies which are necessary for the ownership
of its respective properties or the conduct of its respective businesses as
described in the Prospectus, except where the failure to possess or make
the same would not have, singularly or in the aggregate, a Material Adverse
Effect; no UCAR Group Member has received notification of any revocation or
modification of any such material license, authorization or permit; and
each UCAR Group Member reasonably believes that each such material license,
certificate, authorization or permit will be renewed in the ordinary
course.
(xv) Neither UCAR nor Global is, nor, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will either be, an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations of the Commission
thereunder.
(xvi) Each UCAR Group Member owns or possesses adequate rights to use
all material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service ▇▇▇▇ registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of its businesses, has no reason to
believe that the conduct of its businesses will conflict with any such
rights of others which might reasonably be expected to have a Material
Adverse Effect and has not received any notice of any claim of conflict
with any such rights of others which claim has a reasonable basis and, if
successful, could reasonably be expected to have a Material Adverse Effect.
(xvii) Each UCAR Group Member has good and marketable title in fee
simple to, or has valid rights to lease or otherwise use, all items of real
or personal property which are material to its business, in each case
except as disclosed in the Prospectus, free and clear of all liens that can
reasonably be expected to cause a Material Adverse Effect, in each case
except as disclosed in the Prospectus.
(xviii) No labor disturbance or dispute by the employees of any UCAR
Group Member exists or, to the best of UCAR's knowledge, is contemplated,
which could reasonably be expected to have a Material Adverse Effect.
(xix) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of
toxic or other wastes or other hazardous substances by, due to or caused by
any UCAR Group Member (or, to the best of UCAR's knowledge, any other
entity for whose acts or omissions any UCAR Group Member is or may
reasonably be expected to be liable) upon any of the property now or
previously owned or leased by any UCAR Group Member, or upon any other
property, (i) in violation of any applicable statute, ordinance, rule,
regulation, order, judgment, decree or permit or (ii) in a manner which
would, under any applicable statute, ordinance,
7
rule (including rule of common law), regulation, order, judgment, decree or
permit, give rise to any liability, except in the case of both clauses (i)
and (ii) for any violation or liability which would not have, singularly or
in the aggregate with all such violations and liabilities, a Material
Adverse Effect; there has been no disposal, discharge, emission or other
release of any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous substances
with respect to which UCAR has knowledge, except for any such disposal,
discharge, emission or other release of any kind which would not have,
singularly or in the aggregate with all such disposals, discharges,
emissions and other releases, a Material Adverse Effect.
(xx) Since the date as of which information is given in the
Prospectus, except as otherwise stated therein, (A) there has occurred no
event which has had a Material Adverse Effect or any development that can
reasonably be expected (under current or reasonably anticipated future
economic industry or other relevant conditions) to result in a Material
Adverse Effect, whether or not arising in the ordinary course of business,
(B) there have been no transactions entered into by any UCAR Group Member,
other than those in the ordinary course of business, which are material
with respect to the UCAR Group and (C) there has been no dividend or
distribution of any kind declared, paid or made by UCAR on any class of its
capital stock.
(xxi) Other than as contemplated by this Agreement or the Underwriting
Agreement or as disclosed in the Prospectus, there is no broker, finder or
other party that is entitled to receive: (a) from UCAR or any of its
subsidiaries any brokerage or finder's fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement, the
Underwriting Agreement or the Stock Repurchase Agreement; or (b) from any
U.S. Underwriter or Manager or any affiliate thereof any brokerage or
finder's fee or other fee or commission as a result of UCAR or any of its
subsidiaries or, to the best of UCAR's knowledge, any Selling Stockholder
entering into any agreement or arrangement relating to, or in connection
with, any of the transactions contemplated by this Agreement, the
Underwriting Agreement or the Stock Repurchase Agreement.
(xxii) The Offered Securities and all other outstanding shares of
capital stock of UCAR have been duly authorized; and all outstanding shares
of capital stock of UCAR are validly issued, fully paid and nonassessable
and conform to the description thereof contained in the Prospectus. Except
as disclosed in the Prospectus, the stockholders of UCAR have no preemptive
rights with respect to the Securities.
(xxiii) The Offered Securities are listed on the New York Stock
Exchange.
(xxiv) There are no restrictions contained in any stockholder
agreement, stock option plan or related agreement, subscription agreement
or any similar plan or agreement, relating to the sale of Securities by
existing stockholders of the Company.
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Managers that:
(i) Such Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered Securities
to be delivered by or on behalf of such Selling Stockholder on such Closing
Date, and full right, power and authority (as applicable) to enter into
this Agreement, the Underwriting Agreement and the Stock Repurchase
Agreement and to sell, assign, transfer and deliver the Offered Securities
to be delivered by or on behalf of such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities to be delivered by or on behalf of such Selling Stockholder on
each such Closing Date hereunder, assuming the several Managers acquire
such Offered Securities in good faith and without notice of any adverse
claim within the meaning of the Uniform Commercial
8
Code ("UCC"), the several Managers will acquire valid and unencumbered
title to the Offered Securities to be delivered by or on behalf of such
Selling Stockholder on such Closing Date hereunder.
(ii) Such Selling Stockholder has been duly organized as a limited
partnership and is in good standing under the laws of the jurisdiction in
which it was organized. Such jurisdictions are the State of Delaware, in
the case of BCP, the Cayman Islands, in the case of BOCP, and the State of
Delaware, in the case of BFIP.
(iii) (A) The Stockholder Information and the Supplemental Stockholder
Information does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in which they
were made, not misleading, and (B) it is familiar with the Registration
Statement and Prospectus (including, in each case, any amendment or
supplement thereto), and has no knowledge of any untrue statement of a
material fact therein, and has no knowledge of any omission to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were
made, not misleading. The parties acknowledge and agree that "Stockholder
Information" consists solely of: (A) the information in the first paragraph
on front cover of the Prospectus relating to the Retained Interest (as
defined in the Prospectus); (B) the information in the Prospectus under the
caption "Risk Factors--Shares Eligible for Future Sale" concerning the
Retained Interest and resales of Securities included in the Retained
Interest; (C) the biographical information with respect to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇"), ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") under the caption
"Management" in the Prospectus, under the caption "Election of
Directors--Nominees" in the UCAR Proxy and in Items 10 to 13 inclusive of
the UCAR 10-K, and the information concerning Peterson, Schwarzman,
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ in the second paragraph under the caption "Management"
in the Prospectus; (D) the information with respect to beneficial ownership
of Securities by Blackstone Management Associates II LLC, the Selling
Stockholders, Peterson, Schwarzman, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ under the caption
"Selling Stockholders" in the Prospectus and under the caption "Election of
Directors--Security Ownership of Management and Certain Beneficial Owners"
in the UCAR Proxy; and (E) the information in the Prospectus under the
caption "Selling Stockholders" relating to the Principal Retained Interest
(as defined in the Prospectus), the Limited Partner Retained Interest (as
defined in the Prospectus) and the Retained Interest. The parties further
acknowledge and agree that "Supplemental Stockholder Information" consists
solely of: (A) the information in the first paragraph on front cover of the
Prospectus relating to the Blackstone Share Repurchase (as defined in the
Prospectus) and (B) the information in the Prospectus under the caption
"Selling Stockholders" relating to the Stockholders' Agreement (as defined
in the Prospectus) and the Stock Repurchase Agreement.
(iv) Each of this Agreement, the Underwriting Agreement and the Stock
Repurchase Agreement has been duly authorized and validly executed and
delivered by such Selling Stockholder and, assuming due execution and
delivery by the other parties thereto, constitutes a valid and legally
binding agreement of such Selling Stockholder, enforceable against such
Selling Stockholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity).
(v) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court or arbitrator or by any court
or arbitrator is required to be obtained by such Selling Stockholder for
the consummation of the transactions contemplated by this Agreement, the
Underwriting Agreement or the Stock Repurchase Agreement in connection with
the sale of the Securities by such Selling
9
Stockholder, except such as have been obtained and made under the Act and
such as may be required under state securities laws or the requirements of
the NASD, and except such as have no material effect on the consummation of
the transactions contemplated by this Agreement, the Underwriting Agreement
or the Stock Repurchase Agreement.
(vi) The sale of the Offered Securities, the execution, delivery and
performance of this Agreement, the Underwriting Agreement and the Stock
Repurchase Agreement and the consummation of the transactions herein and
therein contemplated and the fulfillment of the terms hereof and thereof,
will not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any material agreement or instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the properties of such Selling
Stockholder is subject, or the agreement of limited partnership or articles
of partnership of such Selling Stockholder, except in each case where such
breach, violation or default has no material effect on the consummation of
the transactions contemplated by this Agreement, the Underwriting Agreement
or the Stock Repurchase Agreement, and such Selling Stockholder has full
partnership power and authority to sell the Securities to be sold by it as
contemplated by this Agreement, the Underwriting Agreement or the Stock
Repurchase Agreement, respectively.
(vii) The sale of the relevant Offered Securities by such Selling
Stockholder, the execution, delivery and performance of this Agreement, the
Underwriting Agreement and the Stock Repurchase Agreement by such Selling
Stockholder and the consummation by such Selling Stockholder of the
transactions herein and therein contemplated and the fulfillment by such
Selling Stockholder of the terms hereof and thereof, will not result in a
breach or violation of any of the terms and provisions of any statute or
any rule, regulation or order applicable to such Selling Stockholder of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over such Selling Stockholder or any of its properties.
(viii) Other than as contemplated by this Agreement or the
Underwriting Agreement or as disclosed in the Prospectus, such Selling
Stockholder has not agreed with any broker, finder or other party that any
such party is entitled to receive from such Selling Stockholder or any of
its subsidiaries any brokerage or finder's fee or other fee or commission
as a result of any of the transactions contemplated by this Agreement, the
Underwriting Agreement or the Stock Repurchase Agreement; nor, to such
Selling Stockholder's knowledge, without independent inquiry, is there any
broker, finder or other party that is entitled to receive from any Manager
or U.S. Underwriter or any affiliate thereof any brokerage or finder's fee
or other fee or commission as a result of such Selling Stockholder or any
of its subsidiaries or UCAR or any of its subsidiaries entering into any
agreement or arrangement relating to, or in connection with, any of the
transactions contemplated by this Agreement, the Underwriting Agreement or
the Stock Repurchase Agreement.
(ix) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of UCAR to facilitate the sale or resale of the Offered
Securities and has not effected any purchases or sales of Securities,
except as disclosed in the Prospectus and as contemplated by this
Agreement or the Underwriting Agreement.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to the Managers, and each Manager agrees,
severally and not jointly, to purchase from each Selling Stockholder, at a
purchase price of [ ] per share, that number of International Firm Securities
(rounded up or
10
down, as determined by CSFBL in its discretion, in order to avoid fractions)
obtained by multiplying the number of International Firm Securities set forth
opposite the name of such Selling Stockholder in Schedule B hereto by a fraction
the numerator of which is the number of International Firm Securities set forth
opposite the name of such Manager in Schedule A hereto and the denominator of
which is the total number of International Firm Securities.
Each of the Selling Stockholders will deliver the International Firm
Securities to be sold by it to CSFBL for the accounts of the Managers, against
payment of the purchase price by certified or official bank check or checks in
Federal (same-day) funds or by wire transfer to an account previously designated
to CSFBL at a bank acceptable to CSFBL drawn in the proper amounts to the
respective order of each of the Selling Stockholders, at the office of Cravath,
Swaine & ▇▇▇▇▇ ("Underwriters' Counsel"), at 10:00 A.M., New York time, on April
[ ], 1997, or at such other time not later than seven full business days
thereafter as CSFBC, UCAR and the Selling Stockholders determine, such time
being herein referred to as the "First Closing Date". For purposes of Rule
15c6-1 under the Exchange Act, the First Closing Date (if later than the
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
offering. The certificates for the International Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBL requests upon reasonable notice and will be made available
for checking and packaging at the above office of Underwriters' Counsel at least
24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to UCAR and BCP from
time to time not more than 30 days subsequent to the date of the Prospectus, the
U.S. Underwriters and the Managers may purchase all or less than all of the
Optional Securities at the purchase price per Security to be paid for the
International Firm Securities. Each of the Selling Stockholders agrees,
severally and not jointly, to sell to the Managers the respective numbers of
Optional Securities obtained by multiplying the number of Optional Securities
specified in such notice by a fraction the numerator of which is the number of
shares set forth opposite the Selling Stockholders' respective names in Schedule
B hereto under the caption "Number of International Optional Securities to be
Sold" and the denominator of which is the total number of Optional Securities
(subject to adjustment by CSFBL to eliminate fractions). Such International
Optional Securities shall be purchased from the Selling Stockholders for the
account of each Manager in the same proportion as the number of International
Firm Securities set forth opposite such Manager's name bears to the total number
of International Firm Securities (subject to adjustment by CSFBL to eliminate
fractions) and may be purchased by the Managers only for the purpose of covering
over-allotments made in connection with the sale of the International Firm
Securities. No Optional Securities shall be sold or delivered unless the U.S.
Firm Securities and the International Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC to UCAR and BCP.
Each time for the delivery of and payment for the International Optional
Securities, being herein referred to as an "Optional Closing Date", which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "Closing Date"), shall be determined by
CSFBC but shall, unless it is the First Closing Date, be not later than seven or
sooner than three full business days after written notice of election to
purchase Optional Securities is given. Each of the Selling Stockholders will
deliver the International Optional Securities being purchased from it on each
Optional Closing Date to CSFBL for the accounts of the several Managers, against
payment of the purchase price therefor by certified or official bank check or
checks in Federal (same-day) funds or by wire transfer to an account previously
designated to CSFBL at a bank acceptable to CSFBL drawn in the proper amounts to
the respective order of each of the Selling Stockholders at the office of
Underwriters' Counsel. The certificates for the International Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as CSFBL requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for
11
checking and packaging at the office of Underwriters' Counsel at a reasonable
time in advance of such Optional Closing Date.
None of the Selling Stockholders shall be obligated to deliver any Firm
Securities or any Optional Securities to be purchased from it except upon
payment for all the Firm Securities and, if applicable, Optional Securities to
be purchased from it on the relevant Closing Date.
4. Offering by Managers. It is understood that the several Managers
propose to offer the International Securities for sale to the public as set
forth in the international prospectus.
In connection with the distribution of the International Securities, the
Managers, through a stabilizing manager, may over-allot or effect transactions
on any exchange, in any over-the-counter market or otherwise, which stabilize or
maintain the market prices of the International Securities at levels other than
those which might otherwise prevail, but in such event and in relation thereto,
the Managers will act for themselves and not as agents of UCAR, and any loss
resulting from overallotment and stabilization will be borne, and any profit
arising therefrom will be beneficially retained, by the Managers. Such
stabilizing, if commenced, may be discontinued at any time.
5. Certain Agreements of UCAR and the Selling Stockholders. (a) UCAR
agrees with the several Managers and the Selling Stockholders that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, UCAR will file the
Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBL,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement. UCAR will advise CSFBL promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of the
Offered Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, UCAR will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b)
on or prior to 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, on or prior to the time the Prospectus is printed and
distributed to any Manager, or will make such filing at such later date as
shall have been consented to by CSFBL.
(ii) UCAR will advise CSFBL and the Selling Stockholders promptly of
any proposal to amend or supplement the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBL's consent (which
shall not be unreasonably withheld) or without giving the Managers a
reasonable opportunity to comment thereon; UCAR will also advise CSFBL and
the Selling Stockholders promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of a
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of a Registration
Statement and will use its commercially reasonable best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(iii) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Manager or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
12
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, UCAR shall promptly
notify CSFBL and the Selling Stockholders of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFBL's consent to, nor the
Managers' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(iv) As soon as practicable, but not later than the Availability Date
(as defined below), UCAR will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act
and Rule 158 thereunder. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes such Effective Date,
except that, if such fourth fiscal quarter is the last quarter of UCAR's
fiscal year, "Availability Date" means the 90th day after the end of such
fourth fiscal quarter.
(v) UCAR will furnish to the Managers copies of each Registration
Statement (five of which will be signed and will include all exhibits),
each related preliminary prospectus, and, so long as delivery of a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Manager or dealer, the
international prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
CSFBL reasonably requests. The Prospectus shall be so furnished on or prior
to 10:00 A.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so
furnished as soon as available. UCAR will pay the expenses of printing and
distributing to the Managers all such documents.
(vi) UCAR will cooperate with the Managers and Underwriters' Counsel
to arrange for the qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBL reasonably designates and will
continue such qualifications in effect so long as required for the
distribution; provided, that in no event shall UCAR be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(vii) During the period of five years hereafter: (x) UCAR will furnish
to the Managers as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and (y) UCAR will
furnish to the Managers (i) as soon as available, a copy of each report or
definitive proxy statement of UCAR filed with the Commission under the
Exchange Act or mailed to stockholders and (ii) from time to time, such
other information concerning UCAR as CSFBL may reasonably request, provided
that the requirements of this paragraph (a)(vii) shall terminate if UCAR is
no longer subject to the periodic reporting requirements of the Exchange
Act.
(viii) UCAR will pay all expenses incident to the performance of its
obligations under this Agreement and the Underwriting Agreement including
the cost of printing documents (including the Registration Statement and
Prospectus), and will reimburse the Managers for any filing fees and other
expenses (including reasonable fees and disbursements of counsel) incurred
by them in connection with qualification of the Offered Securities for sale
under the laws described in Section 5(a)(vi) and the printing of memoranda
relating thereto, for the filing fee of the NASD relating to the Offered
13
Securities, for any travel expenses of UCAR's officers and employees and
any other expenses of UCAR in connection with attending or hosting meetings
with prospective purchasers of the Offered Securities and for expenses
incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Managers.
(ix) For a period of 90 days after the date of commencement of the
public offering of the Offered Securities, UCAR will not offer, sell,
contract to sell, announce its intention to sell, pledge, hypothecate,
grant any option to purchase or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Act (other than on Form S-8 or Form S-3 (but only relating to resales of
securities as described in the general instructions to Form S-8) and other
than those filed in connection with an acquisition permitted by clause (iv)
below) relating to, any additional Securities or securities convertible
into or exchangeable or exercisable for Securities, or publicly disclose
the intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC, except (i) sales and issuances
of Securities pursuant to the UCAR Carbon Savings Plan (which is described
in Note 14 to UCAR's Consolidated Financial statements included in the
Prospectus), (ii) grants of employee stock options and other awards
pursuant to the terms of a plan in effect on the date hereof or described
in the Prospectus, (iii) sales and issuances of Securities pursuant to the
exercise of such options or awards or the exercise of any other employee
stock options or awards outstanding on the date hereof and (iv) sales and
issuances of Securities in connection with the acquisitions of businesses,
companies or assets by a member of the UCAR Group so long as the recipients
of such shares are subject to the restrictions of this Section 5(a)(ix)
until the expiration of such 90 day period.
(x) No action has been or, prior to the completion of the distribution
of the Offered Securities, will be taken by UCAR or any Selling Stockholder
in any jurisdiction outside the United States and Canada that would permit
a public offering of the Offered Securities, or possession or distribution
of the international prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus issued in connection with the offering
of the Offered Securities, or any other offering material, in any country
or jurisdiction where action for that purpose is required.
(b) Each of the Selling Stockholders severally agrees with the several
Managers that for a period of 45 days after the date of commencement of the
public offering of the Offered Securities, such Selling Stockholder will not
offer, sell, contract to sell, announce its intention to sell, pledge,
hypothecate, grant any option to purchase or otherwise dispose of, directly or
indirectly, any additional Securities or any securities convertible into or
exchangeable or exercisable for Securities (including without limitation,
Securities beneficially owned by such Selling Stockholder in accordance with the
Rules and Regulations, other than those beneficially owned by any other Selling
Stockholder), or publicly disclose the intention to make any such offer, sale,
pledge or disposition, without the prior written consent of CSFBC, except that
each of the Selling Stockholders may transfer or otherwise distribute any of the
Securities owned by it on the date hereof to its general partners or limited
partners, provided that each such general partner or limited partner agrees in
writing to be bound by the provisions of this subsection (b) as if such partner
were a Selling Stockholder hereunder.
6. Conditions of the Obligations of the Managers. The obligations of the
several Managers to purchase and pay for the International Firm Securities on
the First Closing Date and to purchase and pay for the International Optional
Securities on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of UCAR and the Selling Stockholders
herein, to the accuracy of the certificates of UCAR officers and Selling
Stockholders delivered pursuant to the provisions hereof, to the performance by
UCAR and the Selling Stockholders of their respective obligations hereunder and
to the following additional conditions precedent:
14
(a) The Managers shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall
be on or prior to the date of this Agreement or, if the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the Registration Statements to be filed
shortly prior to such Effective Time), of KPMG Peat Marwick LLP confirming
that they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and stating
in effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of UCAR, inquiries of officials of UCAR who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) at the date of the latest available balance sheet read
by such accountants, and at a subsequent specified date not more
than three business days prior to the date of delivery of such
letter, there was any change in the capital stock or any increase
in consolidated short-term indebtedness or long-term debt of UCAR
and its subsidiaries or any decreases in consolidated net current
assets (working capital) or stockholders' equity, as compared
with amounts shown on the latest balance sheet included in the
Prospectus; or
(B) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such
accountants, there were any decreases, as compared with the
corresponding period of the previous year, in consolidated net
sales, consolidated income before extraordinary items or net
income; except in all cases set forth in clauses (A) and (B)
above for changes, increases or decreases which are described in
such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of UCAR
and its subsidiaries subject to the internal controls of UCAR's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter. All
financial statements included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, "Registration Statements" shall mean the initial
registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to its Effective Time,
15
(ii) if the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement but the Effective Time of
the Additional Registration is subsequent to such execution and delivery,
"Registration Statements" shall mean the Initial Registration Statement and
the Additional Registration Statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to be filed shortly
prior to its Effective Time, and (iii) "Prospectus" shall mean the
prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 12:00 P.M., New York time, on April
[ ], 1997, or such later date as shall have been consented to by CSFBL. If
the Effective Time of the Additional Registration Statement (if any) is not
prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Manager, or shall have occurred at such later date as
shall have been consented to by CSFBL. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a)(i) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of any Selling Stockholder, UCAR or the Managers, shall be
contemplated by the Commission. Copies of the Prospectus shall have been
printed and distributed to the Managers in such numbers as they may
reasonably request as soon as practicable on or following the date of this
Agreement.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of the Securities, this Agreement, the
Underwriting Agreement, the Stock Repurchase Agreement and the Registration
Statements, and all other legal matters relating to this Agreement, the
Underwriting Agreement, the Stock Repurchase Agreement and the other
transactions contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to the Managers, and UCAR and the
Selling Stockholders shall have furnished to the Managers all documents and
information that they or their counsel may reasonably request to enable
them to pass upon such matters.
(d) ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished to the Managers
their written opinion, as counsel to UCAR, addressed to the Managers and
dated the Closing Date, in form and substance reasonably satisfactory to
CSFBL, on behalf of the Managers, to the effect that:
(i) UCAR has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification
(other than those jurisdictions in which the failure to so qualify
would not have a Material Adverse Effect), and has all corporate power
and authority necessary to own or hold its properties and to conduct
the businesses in which it is engaged (in rendering such opinions as
to good standing, such counsel may rely on certificates and other
documents of public officials of Delaware and Connecticut);
(ii) UCAR's authorized capital stock is as set forth in the
Prospectus; the capital stock of UCAR conforms in all material
respects to the description thereof included in the Prospectus;
16
(iii) the Offered Securities have been duly authorized and are
validly issued, fully paid and non-assessable; and the stockholders of
UCAR have no pre-emptive rights with respect to the Offered
Securities;
(iv) the descriptions in the Registration Statements and the
Prospectus of statutes (insofar as they relate, to the knowledge of
such counsel, to the business the UCAR Group), legal or governmental
actions, suits, proceedings and con tracts and other documents insofar
as they purport to constitute summaries of such legal or governmental
actions, suits, proceedings and contracts or other documents,
constitute accurate summaries thereof in all material respects;
(v) the statements in the Registration Statements and the
Prospectus under the caption "Certain United States Tax Consequences
to Non-United States Holders", to the extent that they constitute
summaries of U.S. federal tax law and regulation or legal conclusions
with respect thereto, have been reviewed by them and constitute
accurate summaries of the matters described therein in all material
respects;
(vi) UCAR has the corporate right, power and authority to execute
and deliver this Agreement, the Underwriting Agreement and the Stock
Repurchase Agreement and to perform its respective obligations
hereunder and thereunder; and all corporate action required to be
taken by it for the due and proper authorization, execution and
delivery of this Agreement, the Underwriting Agreement and the Stock
Repurchase Agreement and the consummation of the transactions
contemplated hereby and thereby have been duly and validly taken;
(vii) no consent, approval, authorization, order, registration or
qualification of or with any federal or New York court or governmental
agency or body or any Delaware court or governmental agency or body
acting pursuant to the Delaware General Corporation Law is required
for the sale of the Offered Securities or the consummation of the
transactions contemplated by this Agreement, the Underwriting
Agreement or the Stock Repurchase Agreement, except for the
registration under the Act of the Offered Securities, and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Offered
Securities by the Managers; and
(viii) each of this Agreement, the Underwriting Agreement and the
Stock Repurchase Agreement has been duly authorized, executed and
delivered by UCAR, and each constitutes a valid and legally binding
agreement of UCAR;
(ix) the Securities, this Agreement, the Underwriting Agreement
and the Stock Repurchase Agreement conform in all material respects to
the descriptions thereof included in the Prospectus;
(x) neither UCAR nor Global is an "investment company" or a
company "controlled" by an investment company within the meaning of
the Investment Company Act and the rules and regulations of the
Commission thereunder, without taking account of any exemption under
the Investment Company Act arising out of the number of holders of
UCAR's securities; and
(xi) based on the advice of the Commission, the Initial
Registration Statement was declared effective under the Act as of the
date and time specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under the Act as of
the date and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to the
17
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein or was included in the Initial Registration Statement
or the Additional Registration Statement (as the case may be), to the
knowledge of such counsel, no stop order suspending the effectiveness
of a Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto (except for ▇▇▇▇▇
cial statements, the notes thereto and other financial and statistical
data included in the Prospectus, as to which no opinion need be
expressed), as of their respective effective or issue dates, and as of
the Closing Date, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations, including those
applicable to a definitive prospectus forming part of a registration
statement on Form S-3 under the Act.
In rendering such opinion, such counsel may rely as to matters governed
by the laws of any jurisdiction other than the State of New York or the
United States of America on local counsel in such jurisdictions provided
that such counsel shall state that they believe that they and the Managers
are justified in relying on such other counsel.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the relevant UCAR Group Member and public officials
which are furnished to the Managers.
Such opinion shall also state that it is being delivered to the
Managers at the request of UCAR.
(e) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel of UCAR, shall have
furnished to the Managers his written opinion, addressed to the Managers
and dated the Closing Date, in form and substance reasonably satisfactory
to CSFBL, on behalf of the Managers, to the effect that:
(i) UCAR owns all the outstanding shares of the capital stock of
Global; and, except as disclosed in the Prospectus, Global owns,
directly or indirectly, (1) all the outstanding shares of capital
stock of each of Global's subsidiaries (other than UCAR Carbon S.A.
and its subsidiaries, in respect of which Global indirectly owns
approximately 94% of the outstanding shares of its capital stock, UCAR
Mexicana, S.A. de C.V. and its subsidiaries in respect of which Global
indirectly owns more than 99% of the outstanding shares of its capital
stock, UCAR Holdings S.A., Itapira Brasil Investimentos E
Participacoes Ltd. and UCAR Limited, as to which qualifying shares
totaling less than 1% are held by nominees, Grafit, in respect of
which Global indirectly owns approximately 90% of the outstanding
shares of its capital stock, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in respect of which
Global indirectly owns 70% of the outstanding shares of its capital
stock, and Elektroden, in respect of which Global indirectly owns
approximately 70% of the outstanding shares of its capital stock), and
(2) 50% of the outstanding shares of capital stock of EMSA and CL, in
each case, except as disclosed in the Prospectus, free and clear of
any lien, and, except for rights of first refusal on transfers of
capital stock of EMSA, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Elektroden and CL, there are no
rights granted to, or in favor of, any person to acquire any such
capital stock, any additional capital stock or any other securities of
any such subsidiary, EMSA or CL;
(ii) the sale of the Offered Securities, the execution, delivery
and performance of this Agreement, the Underwriting Agreement and the
Stock Repurchase Agreement and the consummation of the transactions
contemplated hereby and thereby do not conflict with or result in a
breach or violation of any of
18
the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of UCAR pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which UCAR is a party or by which UCAR is bound or to which any of the
property or assets of UCAR is subject, in each case, known to such
counsel, except where such conflict, breach, violation, default or
creation (individually or in the aggregate) would not have a Material
Adverse Effect, nor will such actions result in any violation of the
provisions of the charter or by-laws of UCAR or any statute or, to
such counsel's knowledge, any judgment, order, decree, rule or
regulation of any federal or state court or governmental agency or
body or arbitrator having jurisdiction over UCAR or any of its
properties or assets, except where such violation (individually or in
the aggregate) would not have a Material Adverse Effect;
(iii) the Offered Securities have been duly executed (manually
or by facsimile) by UCAR;
(iv) UCAR is not in violation of any terms or provisions of its
charter or by-laws; and
(v) to the best knowledge of such counsel, there is no pending
or threatened action or suit or judicial, arbitral, rule-making or
other administrative or other proceeding to which UCAR or Global is a
party or of which any property or assets of UCAR or Global is the
subject that, singly or in the aggregate, (A) questions the validity
of this Agreement, the Underwriting Agreement, the Stock Repurchase
Agreement or any action taken or required to be taken pursuant hereto
or thereto or (B) if determined adversely to UCAR or Global, is
reasonably likely to have a Material Adverse Effect.
In rendering such opinion, such counsel may rely as to matters
governed by the laws of any jurisdiction other than the State of New York
or the United States of America on local counsel in such jurisdictions
provided that such counsel shall state that he believes that he and the
Managers are justified in relying on such other counsel.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the relevant UCAR Group Member and public officials
which are furnished to the Managers.
Such opinion shall also state that it is being delivered to the
Managers at the request of UCAR.
(f) In addition to the matters set forth in the opinions referred to
in Sections 6(d) and (e) above, each such opinion shall also include a
statement to the effect that such counsel has participated in conferences
with representatives of UCAR, at which conferences the contents of the
documents described below were discussed, and that, although such counsel
assumes no responsibility for the factual accuracy or completeness thereof
(except as stated above), nothing has come to the attention of such counsel
which leads them or him, as the case may be, to believe that any part of a
Registration Statement or any amendment thereto, at the time such
Registration Statement or amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto,
at the time it was filed pursuant to Rule 424(b) or on the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion as to the
19
financial statements and related schedules or other financial or
statistical data contained in the Registration Statement or the Prospectus
or any amendment or supplement thereto).
(g) You shall have received an opinion, dated the Closing Date, from
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Selling Stockholders,
in form and substance reasonably satisfactory to the Managers, to the
effect that:
(i) each of this Agreement, the Underwriting Agreement and the
Stock Repurchase Agreement has been duly authorized, executed and
delivered by BCP and BFIP; and assuming that each of this Agreement,
the Underwriting Agreement and the Stock Repurchase Agreement has been
duly authorized, executed and delivered by BOCP in accordance with the
laws of the Cayman Islands, each of this Agreement, the Underwriting
Agreement and the Stock Repurchase Agreement has been duly authorized,
executed and delivered by BOCP in accordance with the laws of the
State of New York; and
(ii) each of the Selling Stockholders is the sole registered
owner of the Offered Securities to be sold by such Selling
Stockholder; each of BCP and BFIP has full partnership power, right
and authority to sell the Offered Securities to be sold by it and,
assuming that BOCP has full partnership power, right and authority to
sell the Offered Securities to be sold by it under the laws of the
Cayman Islands and assuming that the Managers are purchasing such
Offered Securities in good faith and without notice of any adverse
claim, upon payment for and delivery of the Offered Securities in
accordance with this Agreement and the Underwriting Agreement, the
Managers will acquire all of the rights of each such Selling
Stockholder in the Offered Securities and will also acquire their
interest in such Offered Securities free of any adverse claim (within
the meaning of the UCC).
In rendering such opinion, such counsel may rely as to matters
governed by the laws of any jurisdiction other than the State of New York
or the United States of America on local counsel in such jurisdictions
provided that such counsel shall state that they believe that they and the
Managers are justified in relying on such other counsel.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Selling Stockholders (as applicable) and public
officials which are furnished to the Managers.
Such opinion shall also state that it is being delivered to the
Managers at the request of the Selling Stockholders.
In addition to the matters set forth in clauses (i) and (ii) above,
such opinion shall also include a statement to the effect that such counsel has
participated in conferences with representatives of UCAR and the Selling
Stockholders, at which conferences the contents of the documents described below
were discussed, and that, although such counsel assumes no responsibility for
the factual accuracy or completeness thereof, nothing has come to the attention
of such counsel which leads them to believe that any part of a Registration
Statement or any amendment thereto, at the time such Registration Statement or
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, at the time it was filed pursuant to Rule
424(b) or on the Closing Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need express no
opinion as to the financial statements and related schedules or other financial
or statistical data contained in the Registration Statement or the Prospectus or
any amendment or
20
supplement thereto); provided that the opinions provided for in this
paragraph shall only apply to the Stockholder Information and the
Supplemental Stockholder Information.
(h) You shall have received an opinion, dated the Closing Date,
from ▇.▇. ▇▇▇▇▇▇ & Company, counsel for BOCP, in form and substance
reasonably satisfactory to the Managers, to the effect that:
(i) each of this Agreement, the Underwriting Agreement and
the Stock Repurchase Agreement has been duly authorized, executed
and delivered by BOCP in accordance with the laws of the Cayman
Islands; and
(ii) BOCP has full partnership power, right and authority to
sell the Offered Securities to be sold by it under the laws of
the Cayman Islands.
(i) The Managers shall have received from Cravath, Swaine & ▇▇▇▇▇,
such opinion or opinions, dated the Closing Date, with respect to such
matters as the Managers may reasonably require, and UCAR and the Selling
Stockholders shall have furnished to such counsel such documents as they
reasonably request for enabling them to pass upon such matters.
(j) UCAR shall have furnished to the Managers a letter (the
"bring-down letter") of KPMG Peat Marwick LLP, addressed to the Managers
and dated the Closing Date, confirming, as of the date of the bring-down
letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than three business days
prior to the date of the bring-down letter), the conclusions and findings
of such firm with respect to the financial information and other matters
covered by its letter delivered to the Managers concurrently with the
execution of this Agreement and described in Section 6(a).
(k) UCAR shall have furnished to the Managers a certificate, dated the
Closing Date, of its President and its Chief Financial Officer stating that
(A) such officers have carefully examined the Prospectus, (B) to the best
of their knowledge, after reasonable investigation, as of its date, the
Prospectus did not include any untrue statement of a material fact and did
not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading and since its date, no event has
occurred which should have been set forth in a supplement or amendment to
the Prospectus in order to make the foregoing statement true as of the
Closing Date and (C) as of the Closing Date, the representations and
warranties of UCAR in this Agreement and the Underwriting Agreement that
are qualified as to materiality are true and correct, and those not so
qualified are true and correct in all material respects, UCAR has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date and,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no event which has had a Material Adverse Effect
or development that can reasonably be expected (under current or reasonably
anticipated future economic industry or other relevant conditions) to
result in a Material Adverse Effect.
(l) Each of the Selling Stockholders shall have furnished to the
Managers a certificate, dated the Closing Date, signed by such Selling
Stockholder or an authorized officer (as applicable) stating that as of the
Closing Date the representations and warranties of such Selling Stockholder
in this Agreement and the Underwriting Agreement that are qualified as to
materiality are true and correct, and those not so qualified are true and
correct in all material respects, and that such Selling Stockholder has
complied with
21
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
(m) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Prospectus
(exclusive of any amendment or supplement thereto), there has occurred no
event which has had a Material Adverse Effect or development that can
reasonably be expected (under current or reasonably anticipated future
economic industry or other relevant conditions) to result in a Material
Adverse Effect, or any change specified in the letters referred to in
Section 6(a) or (j), the effect of which, in any such case described above,
is, in the judgment of the Managers, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or delivery of
the Offered Securities on the terms and in the manner contemplated in the
Prospectus (exclusive of any amendment or supplement).
(n) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the sale of the Offered
Securities; and no injunction, restraining order or order of any other
nature by a federal or state court of competent jurisdiction shall have
been issued as of the Closing Date which would prevent such sale.
(o) Subsequent to the execution and delivery of this Agreement, (x) no
downgrading shall have occurred in the rating accorded any of UCAR's or
Global's debt securities or preferred stock by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act, and (y) no such organization
shall have publicly announced that it has under surveillance or review
(other than an announcement with positive implications of a possible
upgrading) its rating of any of UCAR's or Global's debt securities or
preferred stock.
(p) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the Nasdaq National Market, the
American Stock Exchange or the overthe counter market shall have been
suspended or limited, or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by such exchange
or by any other regulatory body or governmental authority having
jurisdiction, or trading in securities of Global or UCAR on any exchange or
in the over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by
U.S. Federal authorities or New York State authorities or authorities in
the United Kingdom or (iii) an outbreak or escalation of hostilities in
which the United States or the United Kingdom is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest of the
Managers, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impracticable or inadvisable to proceed with
the completion of the public offering or the sale of and payment for the
Offered Securities on the terms and in the manner contemplated in the
Prospectus.
(q) UCAR, the Selling Stockholders and the U.S. Underwriters shall
have executed and delivered the Underwriting Agreement on the date of this
Agreement.
(r) If any event shall have occurred that requires UCAR to prepare an
amendment or supplement to the Prospectus, such amendment or supplement
shall have been prepared, copies thereof shall have been delivered to the
Managers and the Managers shall have been given a reasonable opportunity to
comment thereon.
(s) The "lock-up" agreements between the U.S. Underwriters and certain
executive officers and directors of UCAR relating to sales of Securities or
any securities convertible
22
into or exercisable or exchangeable for Securities, previously delivered to
the Managers, shall be in full force and effect on the Closing Date.
(t) UCAR, the Selling Stockholders and Chase Equity Associates, L.P.
shall have executed and delivered the Stock Repurchase Agreement and the
transactions contemplated thereby shall have been consummated as described
in the Prospectus.
UCAR and the Selling Stockholders, as applicable, will furnish the Managers with
such conformed copies of such opinions, certificates, letters and documents as
the Managers reasonably request.
7. Indemnification and Contribution. (a) UCAR will indemnify and hold
harmless each Manager and each Selling Stockholder and each of their respective
officers, employees and directors and each person who controls such Manager or
Selling Stockholder (as applicable) within the meaning of the Act (collectively,
for the purposes of this Section 7(a), the "Indemnified Persons") against any
losses, claims, damages or liabilities, joint or several, to which such
Indemnified Person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or, actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein (or in the Prospectus, in light of the circumstances under
which they were made) not misleading, and will reimburse each Indemnified Person
for any legal or other expenses reasonably incurred by such Indemnified Person
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that UCAR
will not be liable in any such case to any Indemnified Person to the extent that
any such loss, claim, damage, liability or action arises out of or is based upon
an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with any
Excluded Information or Stockholder Information; provided further, however, that
as to any preliminary prospectus this Section 7(a) shall not inure to the
benefit of any Manager on account of any loss, claim, damage, liability or
action from the sale of the Offered Securities to any person by a Manager if
that Manager failed to send or give a copy of the Prospectus, as the same may be
amended or supplemented, to that person if required under the Act, and the
untrue statement or alleged untrue statement or omission or alleged omission in
such preliminary prospectus was corrected in the Prospectus, unless, in either
case, such failure to deliver the Prospectus was a result of noncompliance by
UCAR with Section 5(a)(iii).
(b)(i) Each Manager will severally and not jointly indemnify and hold
harmless UCAR and each Selling Stockholder and each of their respective
officers, employees and directors and each person who controls UCAR or such
Selling Stockholder (as applicable) within the meaning of the Act (collectively,
for the purposes of this Section 7(b)(i), the "Indemnified Persons") against any
losses, claims, damages or liabilities to which such Indemnified Person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
(or, in the Prospectus, in light of the circumstances under which they were
made) not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with any Excluded
Information provided by such Manager through CSFBL, and will reimburse any legal
or other expenses reasonably incurred by such Indemnified Person in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred.
23
(ii) Each of the Selling Stockholders, severally and not jointly, will
indemnify and hold harmless each of UCAR, each Manager, each other Selling
Stockholder and each of their respective officers, employees and directors (as
applicable) and each person who controls such Manager or such other Selling
Stockholder (as applicable) within the meaning of the Act (collectively, for the
purposes of this Section 7(b)(ii), the "Indemnified Persons") against any
losses, claims, damages or liabilities to which such Indemnified Person may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
(or, in the Prospectus, in light of the circumstances under which they were
made) not misleading, in each case to the extent, but only to the extent, that
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon Stockholder Information, and will reimburse each
Indemnified Person for any legal or other expenses reasonably incurred by such
Indemnified Person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred. The liability
of each Selling Stockholder for any indemnification under this Section 7 (and
the corresponding provisions of the Underwriting Agreement) shall be limited to
an amount equal to the net proceeds (after deducting the Managers' discount)
received by such Selling Stockholder from the sale of the Offered Securities
sold pursuant to this Agreement and Underwriting Agreement.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above except to the extent it has been materially
prejudiced by such failure. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent (which consent
shall not be unreasonably withheld) of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. After the indemnifying party has notified the
indemnified party that it is assuming such defense, the indemnified party shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying parties have agreed in writing to pay such fees and expenses, (ii)
the indemnifying parties have failed in a timely manner to assume the defense
and employ counsel reasonably satisfactory to such indemnified party or (iii)
the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such indemnified party and the indemnifying
parties and such indemnified party shall have been advised by its counsel that
representation of such indemnified party and any indemnifying party by the same
counsel would be inappropriate under applicable standards of professional
conduct due to actual or potential differing interests between them (in which
case the indemnifying party shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such indemnified party). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such indemnified parties, and that all such fees
and expenses shall be
24
reimbursed as they are incurred. An indemnifying party shall not be liable for
any settlement of any action or claim effected without its prior written
consent, which shall not be unreasonably withheld.
No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could reasonably have been a party and indemnity could
reasonably have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an indemnified party under Section 7(a) or (b),
then UCAR, each Selling Stockholder and each of the Managers shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section 7(a) or (b), (i) in such
proportion as is appropriate to reflect the relative benefits received by UCAR,
each Selling Stockholder and each of the Managers from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of UCAR, each Selling Stockholder and each of the Managers in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by UCAR, each Selling Stockholder and each of the
Managers shall be deemed to be in the same proportion as the total net proceeds
from the offering pursuant hereto (before deducting expenses) received by UCAR
and the Selling Stockholders, respectively, bear to the total underwriting
discounts and commissions received by the Managers, respectively. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by UCAR, one
of the Selling Stockholders or one of the Managers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), (i) no
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Manager has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission and (ii) no
Selling Stockholder shall be required to contribute any amount in excess of the
net proceeds received by it in connection with the offer and sale of the Offered
Securities. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Managers'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of UCAR and each Selling Stockholder under this
Section shall be in addition to any liability which UCAR or such Selling
Stockholder, respectively, may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Managers under this
Section shall be in addition to any liability which the respective Managers may
otherwise have and shall extend, upon the same terms and conditions, to each
director of UCAR or a Selling Stockholder (as applicable), to each officer of
UCAR who has signed a Registration Statement and to each person, if any, who
controls UCAR or a Selling Stockholder within the meaning of the Act. The rights
and obligations of UCAR and each Selling Stockholder under this Agreement
(including those under Sections 3 and 7(d)) are several and not joint. If any
Selling Stockholder
25
defaults in its obligation to sell the Offered Securities to be sold by it on
either the First Closing Date or any Optional Closing Date, CSFBC shall have the
right to terminate this Agreement without liability on its part or on the part
of any other Underwriter or Manager, UCAR or any non-defaulting Selling
Stockholder, except as provided in Section 9; provided, however, that if such
default occurs with respect to Optional Securities after the First Closing Date,
this Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination and provided further that such
termination shall not release the defaulting Selling Stockholder from liability
to the Managers, UCAR and the non-defaulting Selling Stockholders for its
default.
8. Default of Managers. If any Manager or Managers default in their
obligations to purchase Offered Securities hereunder on either the First Closing
Date or any Optional Closing Date and the aggregate number of Offered Securities
that such defaulting Manager or Managers agreed but failed to purchase does not
exceed 10% of the total number of Offered Securities that the Managers are
obligated to purchase on such Closing Date, CSFBC may make arrangements
satisfactory to the Selling Stockholders for the purchase of such Offered
Securities by other persons, including any of the Managers, but if no such
arrangements are made by such Closing Date, the non-defaulting Managers shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Offered Securities that such defaulting Managers agreed but failed
to purchase on such Closing Date. If any Manager or Managers so default and the
aggregate number of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total number of Offered Securities that the
Managers are obligated to purchase on such Closing Date and arrangements
satisfactory to CSFBL and the Selling Stockholders for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Manager, UCAR or the Selling Stockholders, except as provided in
Section 9 (provided that if such default occurs with respect to Optional
Securities after the First Closing Date, this Agreement will not terminate as to
the International Firm Securities or any Optional Securities purchased prior to
such termination). As used in this Agreement, the term "Manager" includes any
person substituted for an Manager under this Section. Nothing herein will
relieve a defaulting Manager from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and certificates of the
Selling Stockholders and UCAR and their respective officers (as applicable) and
of the several Managers set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Manager, any Selling
Stockholder, UCAR or any of their respective representatives, officers,
directors or controlling persons (as applicable), and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Managers is not consummated, UCAR shall remain responsible for the expenses to
be paid or reimbursed by it pursuant to Section 5 and the respective obligations
of UCAR, the Selling Stockholders and the Managers pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder,
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Managers is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in Section 6(p), UCAR will reimburse the Managers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Managers, will be mailed, delivered or telegraphed and confirmed to the
Managers, c/o Credit Suisse First Boston Limited at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ England, Attention: Company Secretary; if sent to UCAR will be mailed,
delivered or telegraphed and confirmed to it at UCAR International Inc., ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel; and
26
if sent to any of the Selling Stockholders will be mailed, delivered or
telegraphed and confirmed to it in care of Blackstone Management Associates II
L.L.C., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇;
provided, however, that any notice to a Manager pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such Manager (provided that
such Manager has provided its address to the notifying party). Any party hereto
may change the address to which notices to it are to be given by notice in
accordance herewith to the other parties hereto.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives,
heirs and successors and the officers, directors, agents and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation of Managers. CSFBL will act for the several Managers
in connection with the Offering, and any action under this Agreement taken by
CSFBL will be binding upon all the Managers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
Each of UCAR and the Selling Stockholders hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
27
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among UCAR, the Selling
Stockholders and the several Managers in accordance with its terms.
Very truly yours,
UCAR INTERNATIONAL INC.,
by
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Secretary
BLACKSTONE CAPITAL PARTNERS II
MERCHANT BANKING FUND L.P.,
by BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C., General
Partner,
by
------------------------------
Name:
Title:
BLACKSTONE OFFSHORE CAPITAL
PARTNERS II L.P.,
by BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C., General
Partner,
by
--------------------------------
Name:
Title:
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP II L.P.,
by BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C., General
Partner,
by
---------------------------------
Name:
Title:
28
The foregoing Subscription Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇, READ & CO. INC.
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
NIKKO EUROPE PLC
c/o CREDIT SUISSE FIRST BOSTON (EUROPE)
LIMITED (CSFBL)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Each by its duly authorized
attorney-in-fact
By CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
-------------------------------------------
Name:
Title: Attorney-in-Fact
29
SCHEDULE A
Number of
International
Firm Securities
Manager to be Purchased
------- ---------------
Credit Suisse First Boston (Europe) Limited
▇▇▇▇▇▇, Read & Co. Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
PaineWebber International (U.K.) Ltd.
Nikko Europe Plc
-----------
TOTAL 1,360,000
===========
30
SCHEDULE B
Number of
International Number of International
Firm Securities Optional Securities
Selling Stockholder to be Sold to be Sold
------------------- ---------- ----------
Blackstone Capital Partners II Merchant
Banking Fund ▇.▇.
▇▇▇▇▇▇▇▇▇▇ Offshore Capital Partners II ▇.▇.
▇▇▇▇▇▇▇▇▇▇ Family Investment Partnership II
L.P.
--------- ---------
TOTAL 1,280,000
========= =========
