SEC Form SC 13D/A filed by GrafTech International Ltd. (Amendment)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934

Amendment No. 1

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).

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SCHEDULE 13D/A

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.

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. 

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.

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:

NPU Trust

LAU Trust

NU Irrev Trust

LU Irrev Trust

Kanta Trust

Sophia Trust

Jai Trust

Julia Trust

Nilesh Undavia

(d)       Not applicable.

(e)       Not applicable.

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.

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. 

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.

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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:

if to Undavia, to:

Nilesh Undavia

155 E Boca Raton Rd Unit 416

Boca Raton, FL 33432

If to Nominee,

Andree Michelle Petigny

100 Warren Street, Apt 908

Jersey City, NJ 07302

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

IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of the day of February 12, 2024.

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