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Form 8-K GRAFTECH INTERNATIONAL For: Jul 06

July 6, 2015 8:18 AM EDT

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 6, 2015

 

 

 

LOGO

GRAFTECH INTERNATIONAL LTD.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Delaware   1-13888   27-2496053

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification Number)

Suite 300 Park Center I

6100 Oak Tree Boulevard

Independence, Ohio 44131

(Address of Principal Executive Offices, including Zip Code)

Registrant’s Telephone Number, including Area Code: 216-676-2000

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01. Entry into a Material Definitive Agreement.

On July 6, 2015 GrafTech International Ltd. (the “Company”) entered into an amendment (the “Amendment”) to its previously disclosed Agreement and Plan of Merger (the “Merger Agreement”), dated as of May 17, 2015, with BCP IV GrafTech Holdings LP, a Delaware limited partnership (“Parent”), and Athena Acquisition Subsidiary Inc., a Delaware corporation and a wholly owned subsidiary of Parent, pursuant to which, among other things, Parent agreed to make a cash tender offer (the “Offer”) to purchase any and all of the outstanding shares of the Company’s common stock, par value $0.01 per share, at a purchase price of $5.05 per Share in cash. Pursuant to the Amendment, the parties have agreed to extend the Offer to July 28, 2015, to permit the receipt of certain regulatory approvals and clearances, which are conditions to the consummation of the Offer. The Company expects all approvals and clearances to be received in due course. However, if all approvals and clearances are not received by July 28, 2015, the expiration of the Offer may be further extended in accordance with the provisions of the Merger Agreement.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

2.1 First Amendment to Agreement and Plan of Merger


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

GRAFTECH INTERNATIONAL LTD.

Date: July 6, 2015

By:

/s/ John D. Moran

John D. Moran
Vice President, General Counsel and Secretary


EXHIBIT INDEX

 

2.1 First Amendment to Agreement and Plan of Merger

Exhibit 2.1

EXECUTION VERSION

THIS FIRST AMENDMENT, dated as of July 6, 2015 (this “First Amendment”), to the AGREEMENT AND PLAN OF MERGER (the “Merger Agreement”), dated as of May 17, 2015 by and among BCP IV GrafTech Holdings LP, a Delaware limited partnership (“Parent”), Athena Acquisition Subsidiary Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Acquisition Sub”), and GrafTech International Ltd., a Delaware corporation (the “Company”).

WITNESSETH:

WHEREAS, under Section 2.1(d)(i) of the Merger Agreement, the Offer will expire on July 7, 2015, unless the Offer is extended pursuant to and in accordance with the Merger Agreement;

WHEREAS, Section 2.1(d)(ii)(B) of the Merger Agreement contemplates that, under certain conditions, Parent will extend the Offer for an additional ten (10) Business Days in order to permit satisfaction of the conditions to the Offer;

WHEREAS, among others, receipt of certain regulatory approvals are a condition to the Offer;

WHEREAS, not all required regulatory approvals have been received;

WHEREAS, Section 9.5 of the Merger Agreement permits amendment of the Merger Agreement by execution of an instrument in writing signed on behalf of each of Parent, Acquisition Sub and the Company;

WHEREAS, in order to allow for receipt of regulatory approvals, the Parties desire to extend the Offer on the date hereof, from July 7, 2015 to July 28, 2015 (fifteen (15) Business Days after the July 7th expiration date), without prejudice to any additional extensions that may be permitted by Section 2.1(d)(ii)(B) of the Merger Agreement; and

WHEREAS, capitalized terms used herein without definition herein shall have the meanings ascribed thereto in the Merger Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and the warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Parent, Acquisition Sub and the Company hereby agree as follows:


ARTICLE I

AMENDMENTS TO MERGER AGREEMENT

1.1 Amendment to Section 2.1(d)(ii). Section 2.1(d)(ii) of the Merger Agreement is hereby amended:

(a) by deleting clause (B) thereof and replacing it with the following:

“(B) in the event that (i) the Minimum Condition is satisfied and any or all of the other conditions to the Offer are not satisfied or waived (if permitted hereunder) as of expiration of the fifteen (15) Business Day period referred to in clause (D) of this Section 2.1(d)(ii), Parent shall extend the Offer for successive extension periods of ten (10) Business Days each (or any longer or shorter period as may be approved in advance by the Company) in order to permit the satisfaction of all of the conditions to the Offer or (ii) the Minimum Condition is not satisfied as of expiration of the fifteen (15) Business Day period referred to in clause (D) of this Section 2.1(d)(ii), Parent may (in its sole discretion) extend the Offer for successive extension periods of up to ten (10) Business Days each (or any longer period as may be approved in advance by the Company) in order to permit the satisfaction of the Minimum Condition and any other conditions set forth on Annex A that have not then been satisfied or waived (if permitted hereunder); provided, however, that the foregoing clauses (A) or (B) of this Section 2.1(d)(ii) shall not be deemed to impair, limit or otherwise restrict in any manner the right of the parties to terminate this Agreement pursuant to the terms of Article IX; and

(b) to delete the word “and” at the end of clause (B);

(c) to delete the period at the end of clause (C) and to add:

”; and

(D) On July 6, 2015, Parent shall extend the Offer for one period of fifteen (15) Business Days, from July 7, 2015 to July 28, 2015.”

1.2 Amendment to Section 4.6(b)(ii). Section 4.6(b)(ii) of the Merger Agreement is amended to replace the number “4,193,962” appearing therein with the number “2,226,358”.

ARTICLE II

GENERAL PROVISIONS

2.1 No Other Amendment. This Amendment shall apply and be effective only with respect to the provisions of the Merger Agreement specifically referred to herein.

2.2 Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof.

2.3 Counterparts. This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.


IN WITNESS WHEREOF, the undersigned have caused this First Amendment to be executed by their respective duly authorized officers to be effective as of the date first above written.

 

BCP IV GRAFTECH HOLDINGS LP,
By:  BPE IV (Non-Cdn) GP LP,
 its general partner
 By: Brookfield Capital Partners Ltd.,
 its general partner
 By:

/s/ David Nowak

 David Nowak
 Managing Partner
 By:

/s/ J. Peter Gordon

 J. Peter Gordon
 Managing Partner

ATHENA ACQUISITION SUBSIDIARY INC.,

a Delaware corporation

By:

/s/ David Neiman

Name: David Neiman
Title: Senior Vice President

GRAFTECH INTERNATIONAL LTD.,

a Delaware corporation

By:

/s/ Quinn J. Coburn

Name: Quinn J. Coburn
Title: VP of Finance, Treasurer and Interim CFO


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