Exhibit 5.1

 

One Liberty Plaza New York, NY 10006-1470 T: +1 212 225 2000 F: +1 212 225 3999   clearygottlieb.com   WASHINGTON, D.C. ● PARIS ● BRUSSELS ● LONDON ● MOSCOW FRANKFURT ● COLOGNE ● ROME ● MILAN ● HONG KONG BEIJING ● BUENOS AIRES ● SÃO PAULO ● ABU DHABI ● SEOUL   D: +1 212 225 2494 sflow@cgsh.com		VICTOR I. LEWKOW THOMAS J. MOLONEY DAVID G. SABEL JONATHAN I. BLACKMAN YARON Z. REICH RICHARD S. LINCER JAMES A. DUNCAN STEVEN M. LOEB CRAIG B. BROD NICOLAS GRABAR CHRISTOPHER E. AUSTIN HOWARD S. ZELBO DAVID E. BRODSKY ARTHUR H. KOHN RICHARD J. COOPER JEFFREY S. LEWIS PAUL J. SHIM STEVEN L. WILNER ERIKA W. NIJENHUIS ANDRES DE LA CRUZ DAVID C. LOPEZ MICHAEL A. GERSTENZANG LEWIS J. LIMAN LEV L. DASSIN NEIL Q. WHORISKEY JORGE U. JUANTORENA MICHAEL D. WEINBERGER DAVID LEINWAND DIANA L. WOLLMAN JEFFREY A. ROSENTHAL ETHAN A. KLINGSBERG MICHAEL D. DAYAN CARMINE D. BOCCUZZI, JR. JEFFREY D. KARPF KIMBERLY BROWN BLACKLOW ROBERT J. RAYMOND SUNG K. KANG LEONARD C. JACOBY SANDRA L. FLOW		FRANCISCO L. CESTERO FRANCESCA L. ODELL WILLIAM L. MCRAE JASON FACTOR JOON H. KIM MARGARET S. PEPONIS LISA M. SCHWEITZER JUAN G. GIRALDEZ DUANE MCLAUGHLIN BREON S. PEACE MEREDITH E. KOTLER CHANTAL E. KORDULA BENET J. O’REILLY ADAM E. FLEISHER SEAN A. O’NEAL GLENN P. MCGRORY MATTHEW P. SALERNO MICHAEL J. ALBANO VICTOR L. HOU ROGER A. COOPER AMY R. SHAPIRO JENNIFER KENNEDY PARK ELIZABETH LENAS LUKE A. BAREFOOT PAMELA L. MARCOGLIESE PAUL M. TIGER JONATHAN S. KOLODNER DANIEL ILAN MEYER H. FEDIDA ADRIAN R. LEIPSIC ELIZABETH VICENS ADAM J. BRENNEMAN ARI D. MACKINNON JAMES E. LANGSTON JARED GERBER COLIN D. LLOYD COREY M. GOODMAN RISHI ZUTSHI JANE VANLARE		DAVID H. HERRINGTON KIMBERLY R. SPOERRI AARON J. MEYERS DANIEL C. REYNOLDS ABENA A. MAINOO HUGH C. CONROY, JR. JOSEPH LANZKRON MAURICE R. GINDI KATHERINE R. REAVES RAHUL MUKHI     RESIDENT PARTNERS   SANDRA M. ROCKS S. DOUGLAS BORISKY JUDITH KASSEL DAVID E. WEBB PENELOPE L. CHRISTOPHOROU BOAZ S. MORAG MARY E. ALCOCK HEIDE H. ILGENFRITZ KATHLEEN M. EMBERGER AVRAM E. LUFT ANDREW WEAVER HELENA K. GRANNIS JOHN V. HARRISON CAROLINE F. HAYDAY NEIL R. MARKEL KENNETH S. BLAZEJEWSKI ANDREA M. BASHAM LAURA BAGARELLA SHIRLEY M. LO JONATHAN D.W. GIFFORD SUSANNA E. PARKER     RESIDENT COUNSEL   LOUISE M. PARENT     OF COUNSEL

June 18, 2019

GrafTech International Ltd.

982 Keynote Circle

Brooklyn Heights, Ohio 44131

Re: GrafTech International Ltd. Registration Statement on Form S-3

Ladies and Gentlemen:

We have acted as special counsel to GrafTech International Ltd., a corporation organized under the laws of Delaware (the “Company”), in connection with the preparation of a registration statement on Form S-3 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the offering from time to time, together or separately in one or more series (if applicable), (a) by the Company of (i) shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”); (ii) shares of the Company’s preferred stock, par value $0.01 per share (the “Preferred Stock”); (iii) senior or subordinated debt securities of the Company (which may be convertible into Common Stock) (the “Debt Securities”); (iv) fractional interests in shares of Common Stock or Preferred Stock evidenced by depositary receipts (the “Depositary Shares”); (v) warrants to purchase debt or equity securities of the Company (the “Warrants”); (vi) contracts for the purchase or sale of Common Stock, Preferred Stock or Depositary Shares (the “Purchase Contracts”); and (vii) units consisting of one or more Purchase Contracts, Warrants, Debt Securities, shares of Preferred Stock, shares of Common Stock or any combination thereof (the “Units”) and (b) by BCP IV GrafTech Holdings LP, a Delaware limited partnership (the “Selling Securityholder”), of shares of Common Stock and Debt Securities. The Common Stock, Preferred Stock, Debt Securities, Depositary Shares, Warrants, Purchase Contracts and Units are referred to herein collectively as the “Securities.”

The Securities being registered under the Registration Statement will have an indeterminate aggregate initial offering price and will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act.

 

Cleary Gottlieb Steen & Hamilton LLP or an affiliated entity has an office in each of the cities listed above.

GrafTech International Ltd., p. 2

 

The Debt Securities are to be issued under an indenture (the “Indenture”) to be entered into between the Company and U.S. Bank National Association, as trustee, as supplemented from time to time, or one or more other indentures that may be entered into between the Company and a trustee.

The Depositary Shares are to be issued from time to time under one or more deposit agreements (each such deposit agreement, a “Deposit Agreement”) to be entered into between the Company and the depositary to be named therein.

The Warrants are to be issued from time to time under one or more warrant agreements (each such warrant agreement, a “Warrant Agreement”) to be entered into between the Company and the warrant agent to be named therein.

The Purchase Contracts are to be issued from time to time under one or more purchase contract agreements (each such purchase contract agreement, a “Purchase Contract Agreement”) to be entered into between the Company and the purchase contract agent to be named therein.

The Units are to be issued from time to time under one or more unit agreements (each such unit agreement, a “Unit Agreement”) to be entered into between the Company and the unit agent to be named therein.

In arriving at the opinions expressed below, we have reviewed the following documents:

 

(a)

the Registration Statement;

 

(b)

the certificate of Computershare Trust Company, N.A., as registrar and transfer agent for the shares of Common Stock, certifying due registration of the shares of Common Stock;

 

(c)

the form of Indenture, filed as an exhibit to the Registration Statement, including the form of debt security; and

 

(d)

copies of the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated By-Laws certified by the Secretary of State of the State of Delaware and the corporate secretary of the Company, respectively.

In addition, we have reviewed the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.

In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.

GrafTech International Ltd., p. 3

 

Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:

 

1.

The Common Stock, including Common Stock to be issued upon conversion, exchange or exercise of any other Security in accordance with its terms, will be validly issued by the Company, fully paid and nonassessable.

 

2.

The Preferred Stock will be validly issued by the Company, fully paid and nonassessable.

 

3.

The Debt Securities will be the valid, binding and enforceable obligations of the Company, entitled to the benefits of the applicable Indenture.

 

4.

The Depositary Shares to be sold by the Company, upon the due issuance by the depositary of depositary receipts (including any master depositary receipt issued in connection therewith) evidencing such Depositary Shares against the deposit of the shares of Common Stock or Preferred Stock, as the case may be, in respect thereof in accordance with the provisions of the applicable Deposit Agreement, will be validly issued and the persons in whose names the depositary receipts are registered will be entitled to the rights specified therein and in the Deposit Agreement.

 

5.

The Warrants will be the valid, binding and enforceable obligations of the Company.

 

6.

The Purchase Contracts will be the valid, binding and enforceable obligations of the Company.

 

7.

The Units will be the valid, binding and enforceable obligations of the Company.

 

8.

The shares of Common Stock that are issued and outstanding as of the date hereof and may be sold by the Selling Securityholder have been validly issued by the Company and are fully paid and nonassessable.

Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Company, (a) we have assumed that the Company and each other party to such agreement or obligation has satisfied or, prior to the issuance of the Securities, will satisfy, those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Company with respect to the opinion expressed in paragraph 8 above regarding matters of the General Corporation Law of the State of Delaware that in our experience normally would be applicable to general business entities with respect to such agreement or obligation), and (b) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity.

In rendering the opinions expressed in paragraphs 1 through 7 above, we have further assumed that (i) prior to the issuance of the Securities, the Company will authorize the offering and issuance of the Securities and any other Securities issuable on the conversion, exchange or exercise thereof, and will duly authorize, approve and establish the final terms and

GrafTech International Ltd., p. 4

 

conditions thereof, which terms will conform to the descriptions thereof in the Registration Statement and, in the case of the Debt Securities, to the terms of the applicable Indenture or, in the case of other Securities, to the terms of any agreement governing such Securities, and will not violate any applicable law, conflict with any matter of public policy, result in a default under or breach of any agreement or instrument binding upon the Company or violate any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (ii) prior to the issuance of the Securities, the Board of Directors of the Company will duly authorize, establish and approve the terms of the Preferred Stock as contemplated by the Company’s Amended and Restated Certificate of Incorporation, and the Company will duly authorize, execute and deliver any applicable Indenture, Deposit Agreement, Warrant Agreement, Purchase Contract Agreement, Unit Agreement or other agreement necessary with respect to the Securities or contemplated by such Securities, any agreement governing those Securities or the Registration Statement, establish the forms of such Securities as necessary or contemplated by any such agreement or by law and will take any other appropriate additional corporate action, and any such Indenture will conform to the form of Indenture filed as an exhibit to the Registration Statement; (iii) any instruments or receipts evidencing the Securities and any agreement governing the Securities will be governed by New York law; (iv) the Securities will be offered, issued, sold and delivered in compliance with applicable law and any requirements therefor set forth in any corporate action authorizing such Securities and any agreement governing such Securities and in the manner contemplated by the Registration Statement; (v) the Securities will be offered, sold and delivered to, and paid for by, the purchasers thereof at the price specified in, and in accordance with the terms of, an agreement or agreements duly authorized, executed and delivered by the parties thereto, which price, in the case of Common Stock or Preferred Stock, shall not be less than the respective par value thereof; and (vi) if issued in certificated form, certificates representing the Securities will be duly executed and delivered and, to the extent required by any applicable agreement, duly authenticated and countersigned, and if issued in book-entry form, the Securities will be duly registered to the extent required by any applicable agreement.

In rendering the opinions expressed in paragraph 3 above, we have assumed that each series of Debt Securities will be issued with an original aggregate principal amount (or in the case of Debt Securities issued at original issue discount, an aggregate issue price) of $2,500,000 or more.

We note that any designation in the Securities or any applicable agreement governing those Securities of the U.S. federal courts sitting in New York City as the venue for actions or proceedings relating to such Securities or agreement (notwithstanding any waiver thereof) is subject to the power of such courts to transfer actions pursuant to 28 U.S.C. §1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such an action or proceeding.

We note that by statute New York provides that a judgment or decree rendered in a currency other than the currency of the United States shall be converted into U.S. dollars at the rate of exchange prevailing on the date of entry of the judgment or decree. There is no corresponding federal statute and no controlling Federal court decision on this issue. Accordingly, we express no opinion as to whether a Federal court would award a judgment in a currency other than U.S. dollars or, if it did so, whether it would order conversion of the judgment into U.S. dollars. In addition, to the extent that any Securities or applicable agreement

GrafTech International Ltd., p. 5

 

governing those Securities includes a provision relating to indemnification against any loss in obtaining currency due from a court judgment in another currency, we express no opinion as to the enforceability of such provision.

The foregoing opinions are limited to the law of the State of New York and the General Corporation Law of the State of Delaware.

We hereby consent to the use of our name in the prospectus constituting a part of the Registration Statement under the heading “Legal Matters” and in any prospectus supplement related thereto as counsel for the Company that has passed on the validity of the Securities and to the use of this opinion letter as a part (Exhibit 5.1) of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

The opinions expressed herein are rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.