As filed with the Securities and Exchange Commission on December 21, 2001
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UCAR INTERNATIONAL INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 06-1385548
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
3102 West End Avenue, Suite 1100
Nashville, Tennessee 37203
(Address of Principal Executive Offices, Including Zip Code)
UCAR INTERNATIONAL INC. MANAGEMENT STOCK OPTION PLAN
(Full Title of the Plan)
KAREN G. NARWOLD, ESQ.
Vice President, General Counsel and Secretary
UCAR INTERNATIONAL INC.
3102 West End Avenue, Suite 1100
Nashville, Tennessee 37203
(615) 760-7724
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
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COPY TO:
M. RIDGWAY BARKER, ESQ.
KELLEY DRYE & WARREN LLP
Two Stamford Plaza
281 Tresser Boulevard
Stamford, Connecticut 06901
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CALCULATION OF REGISTRATION FEE (1)
=========================== =================== ====================== ====================== ======================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share(2) Price Registration Fee
--------------------------- ------------------- ---------------------- ---------------------- ----------------------
Common Stock,
par value $.01 per share (3) 5,000,000 shares $8.95 $44,750,000 $10,696
=========================== =================== ====================== ====================== ======================
(1) This Registration Statement on Form S-8 is being filed pursuant to Rule
429 under the Securities Act of 1933, as amended (the "Securities
Act"). 4,886,828 shares of Common Stock were previously registered, and
a fee of $12,807 was previously paid, under our Registration Statement
on Form S-8, No. 33-95550, and 3,113,172 shares of Common Stock were
previously registered, and a fee of $21,689 was previously paid, under
our Registration Statement on Form S-8, No. 333-82411, both of which
are hereby combined with this Registration Statement under Rule 429.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act. The price
per share is estimated based on the average of the high and low trading
prices for the Common Stock on December 21, 2001 as reported by The New
York Stock Exchange.
(3) Includes certain rights associated with the shares of Common Stock
pursuant to the Rights Agreement dated August 7, 1998 between the
Registrant and Computershare Investor Services, LLC.
EXPLANATORY NOTE
The purpose of this Registration Statement on Form S-8 of UCAR
International Inc. ("we" or "us") is to register an additional 5,000,000 shares
of our common stock, par value $.01 per share (the "Common Stock"), issuable
pursuant to the UCAR International Inc. Management Stock Option Plan, as amended
and restated through September 29, 1998, as amended. 4,886,828 shares of Common
Stock were previously registered under our Registration Statement on Form S-8,
No. 33-95550, and 3,113,172 shares of Common Stock were previously registered
under our Registration Statement on Form S-8, No. 333-82411, both of which are
hereby combined with this Registration Statement pursuant to Rule 429 under the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission by the Registrant are hereby incorporated by reference into this
Registration Statement:
(a) Our Annual Report on Form 10-K for the year ended December 31, 2000
(the "2000 10-K"), as filed with the Commission on March 20, 2001;
(b) Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2001, as filed with the Commission on May 8, 2001;
(c) Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2001, as filed with the Commission on August 8, 2001;
(d) Our Quarterly Report on Form 10-Q for the quarter ended September
30, 2001, as filed with the Commission on November 14, 2001;
(e) Our Current Report on Form 8-K, as filed with the Commission on May
15, 2001;
(f) Our Current Report on Form 8-K, as filed with the Commission on
June 5, 2001;
(g) Our Current Report on Form 8-K, as filed with the Commission on
July 18, 2001;
(h) Our Current Report on Form 8-K, as filed with the Commission on
July 19, 2001;
(i) The portions of our Proxy Statement for our 2001 Annual Meeting
that have been incorporated by reference into the 2000 10-K;
(j) The description of the Common Stock contained in our Statement on
Form 8-A (Registration No. 1-13888) dated July 28, 1995 and filed with the
Commission under Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any amendments or reports filed for the purpose
of updating such description; and
(k) The description of our Rights contained in our Registration
Statement on Form 8-A (Registration No. 1-13888) dated September 10, 1998 and
filed with the Commission under
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Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendments or reports filed for the purpose of updating
such description.
All documents and reports filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, after the date hereof and prior to the
filing of a post-effective amendment to the Registration Statement which
indicates that the securities offered hereby have been sold or which deregisters
all such securities remaining unsold, shall also be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof commencing on
the respective dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "Law")
provides as follows:
(a) A corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses, (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interest of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the
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corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses with the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in subsections
(a) and (b) of this section. Such determination shall be made with respect to a
person who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a
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constituent) absorbed in a consolidation of merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this section
with respect to the resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises"
shall include benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement vote of stockholders or
disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
Section 102(b)(7) of the Law provides as follows:
(b) In addition to the matters required to be set forth in the
certificate of incorporation by subsection (a) of this section, the certificate
of incorporation may also contain any or all of the following matters:
(7) A provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided such provision shall not eliminate or
limit the liability of a director (i) for any breach of the directors duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under section 174 of this Title, or (iv) for any transaction from
which he director derived an improper personal benefit. No such provision shall
eliminate or limit the liability of a director for any act or omission occurring
prior to the date when such provision becomes effective. All references in this
paragraph to a director shall also be deemed to refer (x) to a member of the
governing body of a corporation which is not authorized to issue capital stock,
and (y) to such other person or persons, if any, who, pursuant to a provision of
the certificate of incorporation in accordance with subsection (a) of ss.141 of
this title, exercise or perform any of the powers or duties otherwise conferred
or imposed upon the board of directors by this title.
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The Company maintains a director's and officer's liability insurance
policy which indemnifies directors and officers for certain losses arising from
claims by reason of a wrongful act, as defined therein, under certain
circumstances.
Certain directors of the registrant may be entitled to indemnification
under separate contractual arrangements.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
These securities were sold to the Selling Stockholders in transactions
not involving any public offering in the United States. Accordingly, these
transactions were exempt from registration under Section 4(2) of the Securities
Act.
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ITEM 8. EXHIBITS.
The following opinions, consents and other documents are attached
hereto as exhibits:
Exhibit No. Description
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4.1 UCAR International Inc. Management Stock Option Plan effective as of
September 29, 1998 (Mid Management Version), as amended.
4.2 Form of Non-Qualified Stock Option Agreement (incorporated by
reference to the Registration Statement of the registrant on
Form S-1 (File No. 33-84850)).
4.3 Form of Non-Qualified Stock Option Agreement (standard version)
(incorporated by reference to the Annual Report on Form 10-K of the
Registrant for the year ended December 31, 1998).
4.4 UCAR International Inc. 1996 Mid Management Equity Incentive Plan
effective as of February 6, 1996 (incorporated by reference to the
Registration Statement of the registrant on Form S-1
(File No. 333-1090)).
5.1 Opinion of Kelley Drye & Warren regarding legality of the
securities originally registered (previously filed).
5.2 Opinion of Kelley Drye & Warren regarding legality of the
securities registered subsequently (previously filed).
5.3 Opinion of Kelley Drye & Warren regarding legality of the securities
being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Kelley Drye & Warren LLP (included in Exhibit 5.1).
23.3 Consent of Kelley Drye & Warren LLP (included in Exhibit 5.2).
23.4 Consent of Kelley Drye & Warren LLP (included in Exhibit 5.3).
24 Powers of Attorney.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which,
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individually or in the aggregate, represent a fundamental change in the
information set forth in this registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933, as amended, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Nashville, State of Tennessee on this 21st day of
December 2001.
UCAR INTERNATIONAL INC.
By: /S/ CORRADO F. DE GASPERIS
------------------------------------------------
Name: Corrado F. De Gasperis
Title: Vice President, Chief Financial Officer
and Chief Information Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURES TITLE DATE
*
----------------------------------------- President, Chief Executive Officer and December 21, 2001
Gilbert E. Playford Director
(Principal Executive Officer)
/S/ CORRADO F. DE GASPERIS
------------------------------------------- Vice President, Chief Financial Officer December 21, 2001
Corrado F. De Gasperis and Chief Information Officer
(Principal Financial and Accounting
Officer)
*
------------------------------------------- Director December 21, 2001
R. Eugene Cartledge
*
------------------------------------------- Director December 21, 2001
Mary B. Cranston
*
------------------------------------------- Director December 21, 2001
John R. Hall
*
------------------------------------------- Director December 21, 2001
Thomas Marshall
*
------------------------------------------- Director December 21, 2001
Michael C. Nahl
*By /S/ CORRADO F. DE GASPERIS
---------------------------------------
Attorney-in-fact
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EXHIBIT INDEX
Sequential
Exhibit Page
Number DESCRIPTION Number
------ ----------- ----------
4.1 UCAR International Inc. Management Stock Option Plan
effective as of September 29, 1998 (Mid-Management Version),
as amended
5.3 Opinion of Kelley Drye & Warren LLP regarding legality of the
securities being registered
23.1 Consent of KPMG LLP
23.4 Consent of Kelley Drye & Warren LLP (included in Exhibit 5.3)
24 Powers of Attorney