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Item 3. Legal Proceedings

2022-02-22 compared with 2021-02-23 · 51 added, 27 removed, 41 unchanged (66% of the section changed)

3 unchanged sentences

Additionally, we are involved in the following legal proceedings.

We are involved in various arbitrations pending before the International Chamber of Commerce with several customers who, among other things, have failed to perform under their LTAs and in certain instances are seeking to modify or frustrate their contractual commitments to us.

We intend to vigorously enforce our rights under these agreements.

We are involved in various arbitrations, sometimes as claimants and other times as respondents/counterclaimants, pending before the International Chamber of Commerce with several customers who, among other things, have failed to perform under their LTAs and in certain instances are seeking to modify or frustrate their contractual commitments to us.

In particular, Aperam South America LTDA, Aperam Sourcing S.C.A., ArcelorMittal Sourcing S.C.A., and ArcelorMittal Brasil S.A.

(collectively, the “Claimants”) initiated a single arbitration proceeding against two of the Company’s subsidiaries in the International Chamber of Commerce in June 2020.

In June 2021, the Claimants filed their statement of claim, seeking approximately $61 million plus interest in monetary relief and/or reimbursement in respect of several fixed price LTAs that were executed between such subsidiaries and the Claimants in 2017 and 2018.

The Claimants argue, among other things, that they should no longer be required to comply with the terms of the LTAs that they signed due to an alleged drop in market prices for graphite electrodes in January 2020.

Alternatively, the Claimants argue that they should not be required to comply with the LTAs that they signed due to alleged market circumstances at the time of execution.

We believe we have valid defenses to these claims.

We intend to vigorously defend them and enforce our rights under the LTAs.

Pending litigation in Brazil has been brought by employees seeking to recover additional amounts and interest thereon under certain wage increase provisions applicable in 1989 and 1990 under collective bargaining agreements to which employers in the Bahia region of Brazil were a party (including our subsidiary in Brazil).

Companies in Brazil have settled claims arising out of these provisions and, in May 2015, the litigation was remanded by the Brazilian Supreme Court in favor of the employees union.

Companies in Brazil have settled claims arising

out of these provisions and, in May 2015, the litigation was remanded by the Brazilian Supreme Court in favor of the employees union.

After denying an interim appeal by the Bahia region employers on June 26, 2019, the Brazilian Supreme Court finally ruled in favor of the employees union on September 26, 2019.

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The employees have further appealed and, on December 16, 2020, the court upheld the decision in favor of GrafTech Brazil.

On February 22, 2021, the employees filed a further appeal, and we intend to vigorously defend our position.

On February 22, 2021, the employees filed a further appeal and, on April 28, 2021, the court rejected the employees' appeal in favor of GrafTech Brazil.

The employees filed a further appeal and we intend to vigorously defend our position.

As of December 31, 2021, we are unable to assess the potential loss associated with these proceedings as the claims do not currently specify the number of employees seeking damages or the amount of damages being sought.

On September 30, 2020, a stockholder of GTI filed a lawsuit in the Delaware Court of Chancery.

On September 30, 2020, a stockholder of the Company filed a lawsuit in the Delaware Court of Chancery.

The stockholder filed an amended complaint on February 5, 2021, in response to the defendants' motion to dismiss.

The amended complaint challenges the fairness of GTI’s repurchase of shares of its common stock from Brookfield for $250 million pursuant to a December 3, 2019 share repurchase agreement and also a related block trade by Brookfield of shares of GTI’s common stock.

The stockholder, on behalf of an alleged class of holders of shares of GTI’s common stock as of December 3, 2019 and also purportedly on behalf of GTI, asserts claims for breach of fiduciary duty against certain members of GTI’s Board of Directors and Brookfield.

The stockholder also challenges the appointment of the newest independent director to GTI’s Board of Directors, as allegedly in violation of GTI’s Amended and Restated Certificate of Incorporation and the Stockholder Rights Agreement with certain Brookfield entities and affiliates.

The stockholder seeks, among other things, an award of monetary relief to GTI and a declaration that the appointment of the newest independent director to the Board of Directors is invalid.

The amended complaint challenges the fairness of the Company’s repurchase of shares of its common stock from Brookfield for $250 million pursuant to a December 3, 2019 share repurchase agreement and also a related block trade by Brookfield of shares of the Company’s common stock.

The stockholder, on behalf of an alleged class of holders of shares of the Company’s common stock as of December 3, 2019 and also purportedly on behalf of the Company, asserts claims for breach of fiduciary duty against certain members of the Company’s Board of Directors and Brookfield.

The stockholder also challenges the appointment of the independent director who was appointed to the Company’s Board of Directors on August 5, 2020, as allegedly in violation of the Company’s Amended and Restated Certificate of Incorporation and the Stockholder Rights Agreement with certain Brookfield entities and affiliates.

The stockholder seeks, among other things, an award of monetary relief to the Company and a declaration that the appointment of the independent director to the Board of Directors is invalid.

On March 22, 2021, the defendants filed a motion to dismiss the amended complaint.

On September 29, 2021, the stockholder voluntarily abandoned the stockholder's direct individual and class action claims challenging the share repurchase.

On October 4, 2021, the Delaware Court of Chancery heard oral argument on the defendants' motion to dismiss the stockholder's remaining claims and took the matter under advisement.

On January 21, 2022, the motion to dismiss was granted in favor of the defendants.

Mine Safety Disclosures

Not applicable.

Supplemental Item.

Information about our Executive Officers

The following table sets forth information with respect to our current executive officers, including their ages, as of February 16, 2021.

There are no family relationships between any of our executive officers.

The following table sets forth information with respect to our current executive officers, including their ages.

Name Age Position

Rintoul 63 President and Chief Executive Officer

Coburn 57 Vice President, Chief Financial Officer and Treasurer

Halford 48 Senior Vice President, Operations and Development

Rintoul 64 Chief Executive Officer and President

Flanagan 44 Chief Financial Officer, Vice President of Finance and Treasurer

Coburn 58 Senior Vice President

Halford 49 Executive Vice President, Chief Operating Officer

Gunning 55 Chief Legal Officer and Corporate Secretary

Iñigo Perez Ortiz 50 Senior Vice President, Commercial

Rintoul became President and CEO and was elected to the board of directors in March 2018.

Rintoul became Chief Executive Officer and President and was elected to our Board of Directors in March 2018.

Prior to joining the Company, Mr.

Rintoul served as President of U.S.

Steel Tubular Products and as a Senior Vice President of United States Steel Corporation ("U.S.

Steel Tubular Products, a fully-integrated tubular products manufacturer, and as a Senior Vice President of United States Steel Corporation ("U.S.

Steel"), an integrated steel producer, since 2014.

Before that, Mr.

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Rintoul holds an Associate’s degree in Mechanical Engineering Technology from Sault College of Applied Arts and Technology, a Bachelor’s degree in Business Administration from Lake Superior State University and a Master’s degree in Business Administration from the University of Notre Dame.

Coburn became CFO in September 2015.

Coburn served as interim CFO beginning in May 2015 after previously serving as Vice President of Finance and Treasurer.

He joined the Company in August 2010 after working at NCR Corporation from December 1992 until August 2010, including service as that company’s Vice President and Treasurer.

Flanagan joined the Company as Chief Financial Officer, Vice President of Finance and Treasurer in November 2021.

Flanagan previously served as Executive Vice President, Chief Financial Officer of Cleveland-Cliffs Inc., a flat-rolled steel producer and supplier of iron ore pellets, from January 2017 to February 2019.

Prior to being promoted to Executive Vice President, Chief Financial Officer of Cleveland-Cliffs, he held a variety of financial leadership roles at Cleveland-Cliffs Inc.

since joining in 2008, including being responsible for the accounting, reporting, treasury and financial planning and analysis functions and serving as the Vice President, Corporate Controller and Chief Accounting Officer from March 2012 to December 2016.

Before joining the Company, Mr.

Flanagan served as Chief Financial Officer of Benesch, Friedlander, Coplan & Aronoff, LLP, an AmLaw 200 law firm, from June 2019 to November 2021.

He has a B.S.

in Accounting from the University of Dayton.

Coburn became Senior Vice President in November 2021.

Prior to that, Mr.

Coburn served as Chief Financial Officer, Vice President Finance and Treasurer from September 2015 to November 2021.

He became interim Chief Financial Officer beginning in May 2015 after previously serving as Vice President of Finance and Treasurer.

He joined the Company in August 2010 after working at NCR Corporation from December 1992 until August 2010, including service as NCR Corporation's Vice President and Treasurer.

Coburn graduated with a B.S.

in Accounting from Utah State University in 1988.

He received a Masters of Business Administration from University of Pennsylvania’s The Wharton School in 1992.

Halford joined the Company on May 1, 2019 as Senior Vice President, Operations and Development.

He received a Master of Business Administration from University of Pennsylvania’s The Wharton School in 1992.

Halford became Executive Vice President, Chief Operating Officer in October 2021.

Halford joined the Company in May 2019 as Senior Vice President, Operations and Development.

Halford previously served as the President of Arconic Engineered Structures, a producer of highly engineered titanium and aluminum components for the aerospace, defense and oil and gas markets, a position he held since January 2017.

Halford also was President of Doncasters Aerospace, a manufacturer of components and assemblies for the civil and military aero engine and airframe markets, from 2014 to 2016, and Vice President, Global Business Development, Doncasters Group Limited from 2013 to 2014.

Previously, he also was President of Mayfran International from 2012 to 2013, and spent seven years at Alcoa in a variety of general management and strategy roles.

Halford holds a Masters of Business Administration degree from Harvard University and a Bachelor of Science degree in Mechanical Engineering from GMI Engineering and Management Institute (now Kettering University).

Previously, he also was President of Mayfran International from 2012 to 2013, and spent seven years at Alcoa Corporation ("Alcoa") in a variety of general management and strategy roles.

Halford holds a Master of Business Administration degree from Harvard University and a Bachelor of Science degree in Mechanical Engineering from GMI Engineering and Management Institute (now Kettering University).

Gunning joined the Company as Chief Legal Officer and Corporate Secretary in July 2018.

She has 25 years of law firm and in-house corporate legal experience across multiple industries.

Prior to joining GrafTech, she was an Associate General Counsel at FirstEnergy Corp.

from 2012 to 2018, where she was responsible for legal matters involving SEC reporting, business development, capital markets, as well as corporate and executive compensation topics.

She has more than 25 years of law firm and in-house corporate legal experience across multiple industries.

Prior to joining GrafTech, she was an Associate General Counsel at FirstEnergy Corp., a distributor and generator of electricity, from 2012 to 2018, where she was responsible for legal matters involving SEC reporting, business development, and capital markets, as well as corporate and executive compensation topics.

She also served as a partner at Jones Day.

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Iñigo Perez Ortiz joined the Company as Senior Vice President, Commercial in February 2020.

Perez most recently served as Vice President, Europe and Asia, Sales and Customer Service at Alcoa Corporation, a global industry leader in bauxite, alumina, and aluminum products, a position he held since 2017.

Perez most recently served as Vice President, Europe and Asia, Sales and Customer Service at Alcoa, a global industry leader in bauxite, alumina, and aluminum products, a position he held since 2017.

Previously at Alcoa, Mr.

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Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 3. Legal Proceedings