UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
GrafTech International Ltd. |
(Name of Issuer)
|
Common Stock, $0.01 par value per share |
(Title of Class of Securities) |
Nilesh Undavia
155 E Boca Raton Road
Unit 416
Boca Raton, Florida 33432
(617) 763-8191 |
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications) |
|
February 2, 2024 |
(Date of Event which Requires
Filing of this Statement) |
If the filing person has previously
filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because
of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover
page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on
the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange
Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions
of the Act (however, see the Notes).
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
Nilesh Undavia |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
PF |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
United States |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
10,192,976 |
8 |
SHARED VOTING POWER |
|
4,545,275 |
9 |
SOLE DISPOSITIVE POWER |
|
10,192,976 |
10 |
SHARED DISPOSITIVE POWER |
|
4,545,275 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
IN |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
Liliana Undavia |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
PF |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
United States and Portugal |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
1,590,000 |
8 |
SHARED VOTING POWER |
|
13,148,251 |
9 |
SOLE DISPOSITIVE POWER |
|
1,590,000 |
10 |
SHARED DISPOSITIVE POWER |
|
13,148,251 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
IN |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
Kanta Undavia |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
PF |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
India |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
0 |
8 |
SHARED VOTING POWER |
|
14,738,251 |
9 |
SOLE DISPOSITIVE POWER |
|
0 |
10 |
SHARED DISPOSITIVE POWER |
|
14,738,251 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
IN |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
The Nilesh P Undavia 2018 Trust u/a Dated 10/25/2018 |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
Florida |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
2,677,175 |
8 |
SHARED VOTING POWER |
|
12,061,076 |
9 |
SOLE DISPOSITIVE POWER |
|
2,677,175 |
10 |
SHARED DISPOSITIVE POWER |
|
12,061,076 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
OO |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
The Liliana Arsenio-Undavia 2018 Trust u/a Dated 10/25/2018 |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
Florida |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
162,600 |
8 |
SHARED VOTING POWER |
|
14,575,651 |
9 |
SOLE DISPOSITIVE POWER |
|
162,600 |
10 |
SHARED DISPOSITIVE POWER |
|
14,575,651 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
OO |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
The Nilesh Undavia Irrevocable Family Trust #1
87-6649173 |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
Florida |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
1,500,000 |
8 |
SHARED VOTING POWER |
|
13,238,251 |
9 |
SOLE DISPOSITIVE POWER |
|
1,500,000 |
10 |
SHARED DISPOSITIVE POWER |
|
13,238,251 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
OO |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
The Liliana Undavia Irrevocable Family Trust #1
87-6649280 |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
Florida |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
1,500,050 |
8 |
SHARED VOTING POWER |
|
13,238,201 |
9 |
SOLE DISPOSITIVE POWER |
|
1,500,050 |
10 |
SHARED DISPOSITIVE POWER |
|
13,238,201 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
OO |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
The Kanta Undavia Revocable Trust |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
Florida |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
115,500 |
8 |
SHARED VOTING POWER |
|
14,622,751 |
9 |
SOLE DISPOSITIVE POWER |
|
115,500 |
10 |
SHARED DISPOSITIVE POWER |
|
14,622,751 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
OO |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
The Sophia Undavia Irrevocable Trust
87-6656323 |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
Florida |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
30,000 |
8 |
SHARED VOTING POWER |
|
14,708,251 |
9 |
SOLE DISPOSITIVE POWER |
|
30,000 |
10 |
SHARED DISPOSITIVE POWER |
|
14,708,251 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
OO |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
The Jai Undavia Irrevocable Trust
87-6665423 |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
Florida |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
30,000 |
8 |
SHARED VOTING POWER |
|
14,708,251 |
9 |
SOLE DISPOSITIVE POWER |
|
30,000 |
10 |
SHARED DISPOSITIVE POWER |
|
14,708,251 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
OO |
|
|
|
|
|
|
SCHEDULE 13D
CUSIP NO. 384313508 |
1 |
NAME OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) |
|
The Julia Undavia Irrevocable Trust
87-6655127 |
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
(a) |
x |
|
|
(b) |
¨ |
3 |
SEC® USE ONLY |
4 |
SOURCE OF FUNDS (SEE INSTRUCTIONS) |
|
OO |
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
¨ |
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION |
Florida |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
30,000 |
8 |
SHARED VOTING POWER |
|
14,708,251 |
9 |
SOLE DISPOSITIVE POWER |
|
30,000 |
10 |
SHARED DISPOSITIVE POWER |
|
14,708,251 |
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
14,738,251 |
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see INSTRUCTIONS) |
¨
|
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
|
5.74% |
14 |
TYPE OF REPORTING PERSON |
|
OO |
|
|
|
|
|
|
| Item 1. | Security and Issuer. |
This Schedule 13D relates to shares of Common Stock, par value
$0.01 per share (the “Common Stock”), of GRAFTECH INTERNATIONAL LTD., a Delaware corporation (the “Issuer”).
The principal executive office of the Issuer is 982 Keynote Circle, Brooklyn Heights, OH 44131.
| Item 2. | Identity and Background. |
| (a) | This statement is being filed by (i) The Nilesh P Undavia 2018 Trust u/a Dated 10/25/2018 (the “NPU Trust”); (ii) The
Liliana Arsenio-Undavia 2018 Trust u/a Dated 10/25/2018 (the “LAU Trust”); (iii) The Nilesh Undavia Irrevocable Family Trust
#1 (the “NU Irrev Trust”); (iv) The Liliana Undavia Irrevocable Family Trust#1 (the “LU Irrev Trust”); (v) The
Kanta Undavia Revocable Trust (the “Kanta Trust”); (vi) The Sophia Undavia Irrevocable Trust (the “Sophia Trust”);
(vii) The Jai Undavia Irrevocable Trust (the “Jai Trust”); (viii) The Julia Undavia Irrevocable Trust (the “Julia Trust”);
(ix) Nilesh Undavia; (x) Liliana Undavia; and (xi) Kanta Undavia. The foregoing persons are hereinafter referred to collectively as the
“Reporting Persons”. The foregoing trusts are hereinafter referred to collectively as the “Trusts”. Nilesh Undavia,
Liliana Undavia, and Kanta Undavia are hereinafter referred to collectively as the “Undavias”. |
| (b) | The business addresses of each the Reporting Persons is 155 E Boca Raton Road, Unit 416, Boca Raton, Florida 33432. |
| (c) | The principal business of each of the Reporting Persons that is a trust is to administer the assets of the trust for the benefit of
the beneficiaries thereof. Nilesh Undavia, Liliana Undavia, and Kanta Undavia are private investors. |
| (d) | During the last 5 years, none of the Reporting Persons has been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors). |
| (e) | During the last 5 years, none of the Reporting Persons has been party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which such person or entity was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect
to such laws. |
| (f) | Nilesh Undavia is a citizen of the United States; Liliana Undavia is a citizen of the United States and Portugal; and Kanta Undavia
is a citizen of India. |
| Item 3. | Source and Amount of Funds or Other Consideration. |
Personal funds of the Undavias, contributed to the Trusts
and to investment retirement accounts, were used to purchase the shares of Common Stock referred to in this Schedule 13D. The total amount
of the funds used to make the purchases described in Item 5 was $38,922,437.
| Item 4. | Purpose of Transaction. |
The filers of this 13D include Nilesh Undavia (“Mr. Undavia”).
Mr. Undavia has more than 25 years of investing experience. Mr. Undavia has a particular expertise investing in cyclical companies and
industries. Over the course of his investing career, Mr. Undavia has worked cooperatively and collaboratively with a large number of incumbent
boards of directors. He has rarely had anything negative to say about an incumbent board of directors.
Mr. Undavia performed very extensive research on the Issuer.
This research involved reviewing and analyzing all shareholder communication from the Issuer’s management, and conferring with experts
who know the steel industry, and the Issuer’s end customers. Mr. Undavia concluded that the Issuer enjoys a highly advantaged long-term
market position in a relatively consolidated industry. The Issuer is among the lowest cost producers of graphite electrodes, and with
a suitable board of directors, the Issuer is likely to gain market share and be highly profitable over the long term.
Mr. Undavia’s confidence in his research was so great
that Mr. Undavia, together with the other Reporting Persons, invested a substantial sum of his family’s personal capital in the
Issuer’s Common Stock. This investment is very meaningful to Mr. Undavia and his family, and represents one of the largest allocations
of their personal funds ever made. Mr. Undavia reserves the right to adjust his position in GrafTech based on investment merit.
In the course of his deep and extensive research, Mr. Undavia
was made aware of what appear to be a number of very serious errors made by the incumbent board of directors (the “Board”).
Mr. Undavia was informed that the incumbent Board is engaged in a search process for a new permanent CEO.
In light of what appear to be multiple very serious errors
made by the incumbent Board, Mr. Undavia concluded that the incumbent Board was likely to make an additional serious error in their choice
of CEO. Such an error might be catastrophic for shareholders.
Mr. Undavia approached the incumbent Board with a humble, soft-spoken
approach, seeking friendly collaboration with the incumbent Board in the selection of a new CEO. In order to serve the interests of all
shareholders, Mr. Undavia sought only one Board seat for the Reporting Persons.
Mr. Undavia’s request for only one Board seat was rejected
by the incumbent Board. The manner in which the incumbent Board did this suggests that the incumbent Board may be entrenching itself.
It suggests that the incumbent Board may be less interested in serving shareholders and more interested in the Board’s own high
fees.
Mr. Undavia attempted to further engage with the incumbent
Board but his requests for constructive dialogue were mostly rejected or ignored.
This set of events has convinced Mr. Undavia that the problems
of the incumbent Board are much deeper than Mr. Undavia originally thought. Mr. Undavia has therefore concluded that only the addition
of two new members to the Board will suffice to guarantee that the Board selects an appropriate CEO.
Mr. Undavia identified a number of excellent candidates for
the Board. However, in the course of his communication, he learned that one of the Board members resigned on January 26, and the Board
shrunk its size from 8 to 7 members. Thus, the Reporting Persons can nominate a maximum of two members to the Board. Mr. Undavia has officially
requested that the incumbent Board allow the Reporting Persons to list two of his candidates on the Universal Proxy that will be distributed
for the annual meeting of shareholders.
Mr. Undavia believes that when shareholders are able to review
the qualifications of the two candidates selected by Mr. Undavia, shareholders will conclude that Mr. Undavia’s two candidates should
be elected to the Board to increase the chances of a positive outcome for all shareholders.
The Reporting Persons’ two candidates are committed to
implementing the best practices of Corporate Governance.
Should the incumbent Board decide to thwart the Reporting Persons’
ability to list two candidates on the Universal Proxy, Mr. Undavia intends to seriously consider running a “denial of quorum”
campaign. Mr. Undavia notes that such campaigns have been successful in demonstrating to incumbent Boards the shareholder desire for change,
and in the past led to incumbent Boards finding themselves unable to reach quorum over the course of multiple attempts, and then entering
into settlement agreements with dissident shareholders.
For a variety of reasons, Mr. Undavia intends to communicate
with shareholders, potential shareholders, journalists, industry analysts and other interested parties directly and through his attorney
Cornish F. Hitchcock. Interested parties can contact Mr. Hitchcock at 202-489-4813
Mr. Undavia is at this time writing a preliminary proxy statement
which will be submitted to the SEC. In addition, My Undavia states:
a) The Reporting Person may acquire shares in the issuer.
b) The Reporting Person is not contemplating any corporate
transaction such as a merger, reorganization or liquidation, involving the issuer or any of its subsidiaries.
c) The Reporting Person is not contemplating a sale or transfer
of a material amount of assets of the issuer or any of its subsidiaries.
d) The Reporting Person aims to fill a position on the issuer’s
board of directors which is up for election in the 2024 Annual Meeting.
e) The Reporting person is not contemplating a change in present
capitalization or dividend policy of the issuer.
f) The Reporting Person is not contemplating a material change
in the issuer’s business or corporate structure
g) The Reporting Person is not contemplating changes in the
issuer’s charter, bylaws corresponding thereto to or other actions which may impede the acquisition of control of the issuer by
any person.
h) The Reporting Person is not contemplating causing the issuer's
common stock to be delisted.
i) The Reporting Person is not contemplating the issuer’s
common stock becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities and Exchange Act of 1934.
j) The Reporting Person is not contemplating any additional
action similar to those enumerated above.
| Item 5. | Interest in Securities of the Issuer. |
| (a) | As of the date of this filing, the Reporting Persons beneficially own 14,738,251 shares (the “Shares”), or approximately
5.74%, of the outstanding Common Stock of the Issuer (calculated based on information included in the Quarterly Report on Form 10-Q filed
by the Issuer on November 3, 2023 for the quarter ended September 30, 2023, which reported that 256,807,900 shares of Common Stock were
outstanding as of October 27, 2023). The Reporting Persons also may be deemed to be members of a “group” (within the meaning
of SEC Rule 13d-5) by virtue of their verbal agreement to vote, hold, or sell of the Shares in the same manner and to act in concert with
respect to the proposals brought to the Board by Mr. Undavia as set forth in Item 4 and as brought forth by Mr. Undavia from time to time. |
| (b) | Nilesh Undavia is the record holder of 8,692,926 Shares through two individual retirement accounts (the “IRAs”). Nilesh
Undavia is the sole trustee of the LU Irrev Trust. Accordingly, Nilesh Undavia may be deemed to hold sole voting and dispositive power
with respect to the 10,192,976 Shares held by him through the IRAs and the LU Irrev Trust. |
Liliana Undavia is the sole trustee of the
NU Irrev Trust, the Sophia Trust, the Jai Trust, and the Julia Trust. Accordingly, Liliana Undavia may be deemed to hold sole voting and
dispositive power with respect to the 1,590,000 Shares held by the NU Irrev Trust, the Sophia Trust, the Jai Trust, and the Julia Trust.
Nilesh Undavia and Kanta Undavia are trustees
of the Kanta Trust, each with shared power to vote or dispose of the Shares held by such Trust unilaterally. Nilesh Undavia and Liliana
Undavia are trustees of the NPU Trust and the LAU Trust, each with shared power to vote or dispose of the Shares held by such Trusts unilaterally.
Furthermore, the Reporting Persons have verbally agreed to vote, hold, or sell the Shares in the same manner and to act in concert with
respect to the proposals brought to the Board by Mr. Undavia as set forth in Item 4 and as brought forth by Mr. Undavia from time to time.
Accordingly, each of the Reporting Persons could be deemed to have shared voting and dispositive power with respect to the following number
of Shares:
(i) |
NPU Trust: |
12,061,076 |
(ii) |
LAU Trust: |
14,575,651 |
(iii) |
NU Irrev Trust: |
13,238,251 |
(iv) |
LU Irrev Trust: |
13,238,201 |
(v) |
Kanta Trust: |
14,622,751 |
(vi) |
Sophia Trust: |
14,708,251 |
(vii) |
Jai Trust: |
14,708,251 |
(viii) |
Julia Trust: |
14,708,251 |
(ix) |
Nilesh Undavia: |
4,545,275 |
(x) |
Liliana Undavia: |
13,148,251 |
(xi) |
Kanta Undavia: |
14,738,251 |
| (c) | The following table sets forth all transactions with respect to Shares effected during the past sixty (60) days by any of the Reporting
Persons. Except as otherwise noted below, all such transactions were purchases of Shares (except for the transaction labelled as “SALE”
in the Jai Trust below) effected in the open market, and the table includes commissions paid in per share prices. |
NPU Trust
Date of Transaction |
Amount of Securities |
Price Per Share ($) |
01/10/2024 |
40,000 |
$1.58 |
01/10/2024 |
100,000 |
$1.60 |
01/09/2024 |
50,000 |
$1.86 |
01/09/2024 |
50,000 |
$1.90 |
01/09/2024 |
50,000 |
$1.92 |
01/04/2024 |
30,000 |
$1.89 |
01/04/2024 |
30,000 |
$1.91 |
01/03/2024 |
30,000 |
$2.00 |
01/02/2024 |
20,000 |
$2.08 |
01/02/2024 |
40,000 |
$2.10 |
01/02/2024 |
20,000 |
$2.14 |
12/29/2023 |
13,600 |
$2.18 |
12/20/2023 |
20,000 |
$2.08 |
12/20/2023 |
20,000 |
$2.09 |
12/20/2023 |
15,000 |
$2.14 |
12/20/2023 |
25,000 |
$2.14 |
12/20/2023 |
20,000 |
$2.14 |
12/20/2023 |
20,000 |
$2.14 |
12/20/2023 |
20,000 |
$2.14 |
12/20/2023 |
1,603 |
$2.14 |
12/18/2023 |
15,000 |
$2.20 |
12/18/2023 |
20,000 |
$2.22 |
12/18/2023 |
50,000 |
$2.24 |
LAU Trust
Date of Transaction |
Amount of Securities |
Price Per Share ($) |
12/22/2023 |
26,600 |
$2.06 |
12/22/2023 |
30,000 |
$2.10 |
12/21/2023 |
14,000 |
$2.01 |
NU Irrev Trust
Date of Transaction |
Amount of Securities |
Price Per Share ($) |
02/02/2024 |
82,500 |
$1.34 |
02/02/2024 |
32,000 |
$1.34 |
02/02/2024 |
100,000 |
$1.35 |
02/02/2024 |
100,000 |
$1.35 |
02/02/2024 |
100,000 |
$1.30 |
02/02/2024 |
5,500 |
$1.29 |
02/02/2024 |
100,000 |
$1.31 |
02/02/2024 |
11,097 |
$1.29 |
02/01/2024 |
27,558 |
$1.33 |
02/01/2024 |
1,400 |
$1.33 |
02/01/2024 |
18,050 |
$1.31 |
12/20/2023 |
20,000 |
$2.13 |
12/20/2023 |
25,000 |
$2.14 |
12/20/2023 |
25,000 |
$2.14 |
12/15/2023 |
20,000 |
$2.42 |
12/15/2023 |
50,000 |
$2.44 |
12/15/2023 |
29,119 |
$2.50 |
LU Irrev Trust
Date of Transaction |
Amount of Securities |
Price Per Share ($) |
02/02/2024 |
62,320 |
$1.36 |
02/02/2024 |
20,180 |
$1.35 |
02/02/2024 |
100,000 |
$1.33 |
02/02/2024 |
100,000 |
$1.35 |
02/02/2024 |
50,000 |
$1.36 |
02/02/2024 |
4,863 |
$1.36 |
02/02/2024 |
900 |
$1.41 |
02/02/2024 |
5,516 |
$1.40 |
02/02/2024 |
39,621 |
$1.37 |
02/02/2024 |
61,086 |
$1.37 |
02/02/2024 |
1,146 |
$1.33 |
02/02/2024 |
2,860 |
$1.31 |
02/02/2024 |
34,908 |
$1.29 |
02/01/2024 |
43,405 |
$1.34 |
02/01/2024 |
56,595 |
$1.34 |
12/20/2023 |
10,000 |
$2.14 |
12/20/2023 |
20,000 |
$2.14 |
12/20/2023 |
20,000 |
$2.15 |
12/18/2023 |
20,000 |
$2.19 |
12/18/2023 |
50,000 |
$2.26 |
12/15/2023 |
50,000 |
$2.44 |
Kanta Trust
Date of Transaction |
Amount of Securities |
Price Per Share ($) |
12/15/2023 |
15,500 |
$2.57 |
Sophia Trust
Date of Transaction |
Amount of Securities |
Price Per Share ($) |
02/06/2024 |
82 |
$1.36 |
01/10/2024 |
22,000 |
$1.62 |
12/13/2023 |
18 |
$2.42 |
12/12/2023 |
7,900 |
$2.50 |
Jai Trust
Date of Transaction |
Amount of Securities |
Price Per Share ($) |
02/06/2024 |
112 (SALE) |
$1.35 |
01/10/2024 |
8,300 |
$1.64 |
01/10/2024 |
13,882 |
$1.60 |
12/13/2023 |
30 |
$2.42 |
12/12/2023 |
7,900 |
$2.50 |
Julia Trust
Date of Transaction |
Amount of Securities |
Price Per Share ($) |
02/06/2024 |
36 |
$1.36 |
01/10/2024 |
22,000 |
$1.63 |
12/13/2023 |
64 |
$2.42 |
12/12/2023 |
7,900 |
$2.50 |
Nilesh Undavia
Date of Transaction |
Amount of Securities |
Price Per Share ($) |
02/05/2024 |
75,234 |
$1.24 |
02/05/2024 |
100,000 |
$1.24 |
02/05/2024 |
100,000 |
$1.25 |
02/05/2024 |
100,000 |
$1.23 |
02/05/2024 |
87,503 |
$1.23 |
02/05/2024 |
5,447 |
$1.22 |
02/05/2024 |
98,300 |
$1.23 |
02/05/2024 |
1,700 |
$1.21 |
02/05/2024 |
100,000 |
$1.21 |
02/05/2024 |
97,638 |
$1.24 |
02/05/2024 |
2,362 |
$1.22 |
02/02/2024 |
100,000 |
$1.36 |
02/02/2024 |
100,000 |
$1.36 |
02/02/2024 |
75,817 |
$1.36 |
01/02/2024 |
107,000 |
$2.17 |
12/18/2023 |
200,000 |
$2.28 |
12/15/2023 |
24,183 |
$2.51 |
12/15/2023 |
100,000 |
$2.56 |
12/13/2023 |
276,423 |
$2.42 |
12/12/2023 |
200,000 |
$2.49 |
(d) Not
applicable.
(e) Not
applicable.
| Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Except as otherwise described herein (including
Item 5 and this Item 6), there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons
named in Item 2 and between such persons and any person with respect to any securities of the Issuer, including but not limited to transfer
or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of proxies.
| (a) | Nilesh Undavia, Liliana Undavia, and Kanta Undavia are family members. Nilesh Undavia and Liliana Undavia are spouses. Kanta Undavia
is Nilesh Undavia’s mother. |
| (b) | Nilesh Undavia has nominated Ms. Andree Michelle Petigny to occupy a director seat on GrafTech International Ltd.’s board of
directors. Nilesh Undavia, as trustee of The Nilesh P Undavia 2018 Trust u/a Dated 10/25/2018 is party to that certain Engagement and
Indemnification Agreement entered into on or about January 22, 2024 with Ms. Andree Michelle Petigny pursuant to which the NPU Trust has
agreed to indemnify, defend, and hold Ms. Petigny harmless with respect to claims and actions against Ms. Petigny arising out of her service
to and activities on behalf of GrafTech International Ltd., as a candidate for election to the company’s board of directors and
in the course of her duties if and when elected to the board. A copy of such Indemnification Agreement is attached to this filing. |
| Item 7. | Material to be Filed as Exhibits. |
| 1. | Joint Filing Agreement of the Reporting Persons. |
| 2. | Engagement and Indemnification Agreement by and between Nilesh Undavia, as trustee of The Nilesh P Undavia 2018 Trust u/a Dated 10/25/2018
and Andree Michelle Petigny. |
Signatures
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: February 12, 2024 |
/s/ Nilesh Undavia |
|
Nilesh Undavia |
|
|
|
|
/s/ Liliana Undavia |
|
Liliana Undavia |
|
|
|
|
/s/ Kanta Undavia |
|
Kanta Undavia |
|
|
|
|
THE NILESH P UNDAVIA 2018 TRUST U/A DATED 10/25/2018 |
|
THE LILIANA ARSENIO-UNDAVIA 2018 TRUST U/A DATED 10/25/2018 |
|
|
|
|
By: |
/s/ Nilesh Undavia |
|
Nilesh Undavia, Trustee |
|
|
|
|
By: |
/s/ Liliana Undavia |
|
Liliana Undavia, Trustee |
|
|
|
|
THE NILESH UNDAVIA IRREVOCABLE FAMILY TRUST #1 |
|
THE SOPHIA UNDAVIA IRREVOCABLE TRUST |
|
THE JAI UNDAVIA IRREVOCABLE TRUST |
|
THE JULIA UNDAVIA IRREVOCABLE TRUST |
|
|
|
|
By: |
/s/ Liliana Undavia |
|
Liliana Undavia, Trustee |
|
|
|
|
THE LILIANA UNDAVIA IRREVOCABLE FAMILY TRUST#1 |
|
|
|
|
By: |
/s/ Nilesh Undavia |
|
Nilesh Undavia, Trustee |
|
|
|
|
THE KANTA UNDAVIA REVOCABLE TRUST |
|
|
|
|
By: |
/s/ Nilesh Undavia |
|
Nilesh Undavia, Trustee |
|
|
|
|
By: |
/s/ Kanta Undavia |
|
Kanta Undavia, Trustee |
JOINT FILING AGREEMENT
The undersigned hereby agree that they are filing this statement jointly
pursuant to Rule 13d-1(k)(1). Each of them is responsible for the timely filing of such Schedule 13D and any amendments thereto, and for
the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness
or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that
such information is inaccurate.
In accordance with Rule 13d-1(k)(1) promulgated under the Securities
Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with each other on behalf of each of them of such a
statement on Schedule 13D with respect to the Common Stock of GrafTech International Ltd. beneficially owned by each of them. This Joint
Filing Agreement shall be included as an exhibit to such Schedule 13D.
[Remainder of page intentionally left blank.]
ENGAGEMENT AND INDEMNIFICATION AGREEMENT, dated as of January 22, 2024
(this “Agreement”), by and between Nilesh Undavia, trustee of Nilesh P Undavia 2018 Trust Dated October 25, 2018 (“Undavia”)
and Andree Michelle Petigny “Nominee”.
WHEREAS, Undavia has asked Nominee, and Nominee has agreed, to be (i)
a member of the slate of nominees (the “Slate”) of Undavia for election to the Board of Directors (the “Board
of Directors”) of GrafTech Corporation, a Delaware corporation (“the Company”), at the 2024 annual meeting
of stockholders of the Company (including any adjournments, postponements, rescheduling or continuations thereof) (the “Annual
Meeting”) and (ii) named as such in Undavia’s proxy solicitation materials related to the Annual Meeting;
WHEREAS, Undavia may solicit proxies from the stockholders of the Company
in support of Nominee’s election as a director of the Company at the Annual Meeting (the “Solicitation”); and
WHEREAS, Nominee has agreed to serve as a director of the Company if
so elected at the Annual Meeting or appointed to the Board of Directors by other means.
NOW, THEREFORE, in consideration of the foregoing and with the understanding
on the part of Undavia that Nominee is relying on this Agreement in agreeing to be a nominee as aforesaid and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Certain Definitions. As used
in this Agreement, the following terms shall have the meanings indicated below:
“Claim” means
any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative, formal or informal, investigative
or other), whether instituted by Undavia, the Company or any other party, or any inquiry or investigation that Nominee in good faith believes
might lead to the institution of any such action, suit or proceeding.
“Expenses”
means all reasonable documented out-of-pocket attorneys’ fees and all other reasonable out-of-pocket fees, costs, and expenses paid
or incurred directly and solely in connection with the Solicitation or matters related to the Solicitation, as applicable, including without
limitation, investigating, defending or participating in (as a party, witness or otherwise, including on appeal), or preparing to defend
or participate in, any Claim relating to any Indemnifiable Event, including the reasonable documented out-of-pocket costs and expenses
Nominee incurred directly in connection with seeking enforcement of this Agreement, in each case except to the extent arising out of or
resulting from Nominee’s (i) willful violation of state or federal law in connection with the Solicitation or a willful breach of
this Agreement through actions not instructed or authorized by Undavia, unless Nominee demonstrates (any such demonstration to be reasonably
determined solely by Undavia) that Nominee’s actions were taken in good faith and in a manner Nominee reasonably believed to be
in, or not opposed to, the best interests of electing the Slate, (ii) gross negligence, willful misconduct through actions not instructed
or authorized by Undavia or bad faith, or (iii) a material misstatement in, or omission of, any information provided by Nominee in connection
with the Solicitation, and in each case, to the extent not otherwise covered by insurance or indemnification from another source (including,
without limitation, the Company).
“Indemnifiable Event”
means any event or occurrence directly arising out of, or any action taken or omitted to be taken directly and solely in connection with,
the Solicitation or being a member of the Slate, in each case except to the extent arising out of or resulting from Nominee’s (i)
willful violation of state or federal law in connection with the Solicitation or a willful breach of this Agreement through actions not
instructed or authorized by Undavia, unless Nominee demonstrates (any such demonstration to be reasonably determined solely by Undavia)
that Nominee’s actions were taken in good faith and in a manner Nominee reasonably believed to be in, or not opposed to, the best
interests of electing the Slate, (ii) gross negligence, willful misconduct through actions not instructed or authorized by Undavia or
bad faith, or (iii) a material misstatement or omission of any information provided by Nominee in connection with the Solicitation and
in each case to the extent not otherwise covered by insurance or indemnification from another source (including, without limitation, the
Company).
“Loss or Losses”
means any and all damages, judgments, fines, penalties, amounts paid or payable in settlement, deficiencies, losses and Expenses (including
all interest, assessments, and other charges paid or payable in connection with or in respect of such Losses), in each case except
to the extent arising out of or resulting from Nominee’s (i) willful violation of state or federal law in connection with the Solicitation
or a willful breach of this Agreement through actions not instructed or authorized by Undavia, unless Nominee demonstrates (any such demonstration
to be reasonably determined solely by Undavia) that Nominee’s actions were taken in good faith and in a manner Nominee reasonably
believed to be in, or not opposed to, the best interests of electing the Slate, (ii) gross negligence, willful misconduct through actions
not instructed or authorized by Undavia or bad faith, or (iii) a material misstatement or omission of any information provided by Nominee
in connection with the Solicitation, and in each case to the extent not otherwise covered by insurance or indemnification from another
source (including, without limitation, the Company).
NOW, THEREFORE, in consideration of the foregoing and with the understanding on the part of Undavia that Nominee is relying on this Agreement
in agreeing to be a nominee as aforesaid and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
| 1. | Nominee hereby represents and warrants to Undavia that she will not, without Undavia’s prior written
consent, acquire, directly or indirectly, any shares of GrafTech Int’l Ltd., whether beneficially (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended) or of record, or effect any sale or disposition of any share of GrafTech Int’l
Ltd., from the date hereof until the conclusion of the Meeting and that she will not cause or be a party to any transactions by all business
partners, associates, family members and other entities or individuals with which she might share such beneficial ownership of GrafTech
Int’l Ltd. Nominee furthermore agrees to treat this matter with utmost confidentiality and agrees to not mention or discuss the
name of the Company or her nomination to the Company’s board with any family member, acquaintance, friend or business associate. |
| 2. | Nominee hereby agrees (a) (i) to promptly complete, sign, and return GrafTech Int’l 2024 questionnaire form requesting information
relating to Nominee’s background and qualifications (ii) the written consent and any other documents that may be required to be
completed and delivered to the Company in order to be eligible to be a nominee for election to the Board of Directors and to serve as
a director if elected, pursuant to the Company’s Amended and Restated Bylaw as of November 9, 2023s, (b) that Nominee’s responses
in the Questionnaires and Nominee’s representations in any form provided to Undavia or the Company will be true, complete and correct
in all material respects and will not omit any material information, (c) that Nominee will provide true, correct and complete information
concerning such other matters as are required or customary to be disclosed regarding Nominee, Nominee’s nomination to the Board
of Directors, or the Solicitation under (i) the Company’s governing documents or nomination or other director requirements, or (ii)
pursuant to the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder, (d) that Nominee
will promptly provide any additional information as may be requested by Undavia, such information to be true and correct and not omit
any material information, and (e) that Nominee will promptly notify Undavia of any changes or updates to any information provided by Nominee
to Undavia pursuant to this section. Nominee further acknowledges and agrees that Undavia may forward the Questionnaires and
the Written Consent to the Company, as applicable, and both Undavia and the Company may at any time, in their respective discretion, publicly
disclose such information, as well as the existence and contents of this Agreement and any information that Nominee provides pursuant
to this Agreement. Furthermore, Nominee acknowledges and agrees that Undavia may elect, at his expense, to conduct a background and reference
check of Nominee and Nominee further agrees to complete and execute any necessary authorization forms or other documents required in connection
therewith. |
| 3. | As part of the nomination process, Nominee agrees to be interviewed by the Company once at soon as practicable, if requested by the
Company. Nominee will agree to any additional interviews by the Company or its representatives only with prior written approval by Undavia.
Nominee agrees to not communicate in any way with any member of the Company’s management, representatives, Board members or affiliates
without Undavia’s prior written consent. Nominee agrees to inform Undavia by phone or text within one hour of any attempt by any
of the Company’s representatives to communicate with the Nominee. |
| 4. | As part of the nomination process Nominee understands (a) Undavia may enter into a settlement with the company on or before the Annual
Meeting which may result in the Nominee being withdrawn as a candidate for the board of directors and (b) Nominee agrees to not enter
into any settlement with the Company to serve on the Board of Directors without written approval by Undavia or be a candidate for the
Company’s slate without written approval by Undavia. |
| 5. | In the event Nominee was, is or becomes a party to, or other participant in, or is threatened to be made
a party to or other participant in, a Claim by reason of (or arising or allegedly arising in any manner out of or relating to in whole
or in part) an Indemnifiable Event, Undavia or a designee thereof, to the fullest extent permitted by applicable law, shall indemnify
and hold harmless Nominee from and against any and all Losses suffered, incurred or sustained by Nominee or to which Nominee becomes subject,
arising out of such Claim (it being understood and agreed that, except as provided in Section 4(c) with respect to Expenses,
reimbursements of any such Losses payable hereunder shall be made as soon as practicable but in any event no later than thirty (30) days
after written request is made to Undavia accompanied by reasonable supporting documentation). |
| 6. | Nominee shall give Undavia prompt written notice of any Claim (accompanied by such reasonable supporting
documentation as may be in Nominee’s possession) as soon as Nominee becomes aware of any such Claim. |
| 7. | In the case of the commencement of any Claim against Nominee in respect of which Nominee may seek indemnification from Undavia hereunder,
Undavia will be entitled to participate therein, including, without limitation, the negotiation and approval of any settlement of such
Claim. In addition, Undavia shall have, in his sole discretion, the right to assume control of the defense of such Claim with
counsel chosen by Undavia. To the extent that Undavia may wish to assume the defense of any Claim against Nominee in respect of which
Nominee may seek indemnification from Undavia hereunder, Undavia shall provide Nominee with written notice of Undavia’s election
to assume the defense of such Claim. From and after such election by Undavia to assume defense of a Claim, Undavia will not
be liable to Nominee under this Agreement for any Expenses subsequently incurred by Nominee in connection with the defense thereof other
than reasonable costs of investigation and preparation therefor (including, without limitation, appearing as a witness and reasonable
fees and expenses of legal counsel in connection therewith). If, in any action for which indemnity may be sought hereunder,
Undavia shall not have timely assumed the defense thereof or Nominee shall have been advised by Nominee’s independent counsel that
it would constitute a conflict of interest for the same counsel to represent both Nominee and Undavia in such action, or if Nominee has
been advised by independent counsel that Nominee has separate or additional defenses than those available to Undavia with regard to such
action, Nominee shall have the right to employ Nominee’s own counsel reasonably satisfactory to Undavia in such action, in which
event Undavia shall pay directly or reimburse Nominee for any reasonable documented costs, out-of-pocket legal fees and expenses not paid
directly and incurred by Nominee in connection with the defense thereof; provided, however, that Undavia shall
be obligated to pay for only one firm to serve as counsel for all of Undavia’s nominees for election to the Board of Directors unless
Nominee has been informed by independent counsel that there are conflicts of interest or additional defenses for Nominee relative to the
other nominees. Nominee shall not settle any action, and Nominee shall not be responsible for any settlement of any claim against
Nominee covered by this Agreement, without the prior written consent of Undavia, which consent shall not be unreasonably delayed or withheld. Undavia
shall not settle any Claim in any manner that would impose any expense, penalty, obligation or limitation on Nominee that could reasonably
be viewed as an acknowledgment of wrongdoing on the part of Nominee, without Nominee’s prior written consent (which consent shall
not be unreasonably conditioned, delayed or withheld). |
| 8. | Nominee’s right to indemnification pursuant to this Section 4 shall include the right of Nominee to be advanced
by Undavia or a designee thereof any Expenses incurred in connection with any Indemnifiable Event as such expenses are incurred by Nominee; provided, however,
that all amounts advanced in respect of such Expenses shall be promptly repaid to Undavia or a designee thereof by Nominee to the extent
it shall ultimately be determined in a final judgment by a court of competent jurisdiction that Nominee is not entitled to be indemnified
for or advanced such Expenses. The indemnification and reimbursement arrangements contemplated herein shall only take effect if Nominee
is publicly named by Undavia as a member of the Slate. |
| 9. | Notwithstanding any other provision of this Agreement to the contrary, the indemnity and expense reimbursement obligations under this
Agreement will not apply to any event or occurrence that takes place (i) prior to the date hereof, (ii) subsequent to the conclusion of
the Solicitation or at such earlier time as Nominee is no longer a member of the Slate, or (iii) relating to or directly or indirectly
arising out of Nominee’s service as a director of the Company. |
| 10. | Notices. All notices, requests and other communications to any party hereunder shall
be in writing (including telecopy, email or similar writing) and shall be given to such party, |
if to Undavia, to:
Nilesh Undavia
155 E Boca Raton Rd Unit 416
Boca Raton, FL 33432
|
|
|
Telephone: |
|
(617) 763-8191 |
Email: |
|
nundavia@gmail.com
|
If to Nominee,
Andree Michelle Petigny
100 Warren Street, Apt 908
Jersey City, NJ 07302
|
|
|
Telephone: |
|
(212) 229-2740 |
Email: |
|
amp@michellepetigny.com |
| 11. | Nominee Acknowledgement: Notwithstanding anything else in this Agreement, Nominee acknowledges that Undavia is and
will be under no obligation to nominate Nominee for election to the Board of Directors. Nominee acknowledges that Undavia will
rely upon information provided by Nominee for purposes of preparing regulatory filings, submissions to the Company, Solicitation materials
and other public disclosures. |
| 12. | Headings. The headings used herein are included for convenience of reference only and shall be ignored in the construction
or interpretation of this Agreement. |
| 13. | Execution by Counterparts/Facsimile. This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which together shall constitute one and the same instrument. This Agreement may also
be executed by PDF. |
The parties hereto have executed this Agreement:
Date: January 22, 2024
By: Nilesh Undavia, Trustee for Nilesh P Undavia
2018 Trust Dated Oct 25, 2018
/s/ Nilesh Undavia
Nilesh Undavia
By: Andree Michelle Petigny
/s/ Andree Michelle Petigny
Andree Michelle Petigny
-
|
By: |
Quentin Koffey |
|
|
Name: |
Quentin Koffey |
|
|
Title: |
Managing Member |
|
|
|
|
|
|
Name: |
[Nominee] |
|
|
Politan Capital Management LP |
|
|
|
|
|
By: |
Politan Capital Management GP LLC, its general partner |
|
|
|
|
|
|
By: |
Quentin Koffey |
|
|
Name: |
Quentin Koffey |
|
|
Title: |
Managing Member |
|
|
|
|
|
|
Name: |
[Nominee] |
|
IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing
Agreement as of the day of February 12, 2024.
|
/s/ Nilesh Undavia |
|
Nilesh Undavia |
|
|
|
|
/s/ Liliana Undavia |
|
Liliana Undavia |
|
|
|
|
/s/ Kanta Undavia |
|
Kanta Undavia |
|
|
|
|
THE NILESH P UNDAVIA 2018 TRUST U/A DATED 10/25/2018 |
|
THE LILIANA ARSENIO-UNDAVIA 2018 TRUST U/A DATED 10/25/2018 |
|
|
|
|
By: |
/s/ Nilesh Undavia |
|
Nilesh Undavia, Trustee |
|
|
|
|
By: |
/s/ Liliana Undavia |
|
Liliana Undavia, Trustee |
|
|
|
|
THE NILESH UNDAVIA IRREVOCABLE FAMILY TRUST #1 |
|
THE SOPHIA UNDAVIA IRREVOCABLE TRUST |
|
THE JAI UNDAVIA IRREVOCABLE TRUST |
|
THE JULIA UNDAVIA IRREVOCABLE TRUST |
|
|
|
|
By: |
/s/ Liliana Undavia |
|
Liliana Undavia, Trustee |
|
|
|
|
THE LILIANA UNDAVIA IRREVOCABLE FAMILY TRUST#1 |
|
|
|
|
By: |
/s/ Nilesh Undavia |
|
Nilesh Undavia, Trustee |
|
|
|
|
THE KANTA UNDAVIA REVOCABLE TRUST |
|
|
|
|
By: |
/s/ Nilesh Undavia |
|
Nilesh Undavia, Trustee |
|
|
|
|
By: |
/s/ Kanta Undavia |
|
Kanta Undavia, Trustee |
28
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