-------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
By and among
HEXCEL CORPORATION,
GS CAPITAL PARTNERS 2000, L.P.,
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.,
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.,
GS CAPITAL PARTNERS 2000 GmbH & CO. BETEILIGUNGS KG
and
STONE STREET FUND 2000, L.P.
____________________
Dated as of December 18, 2002
____________________
-------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
AUTHORIZATION AND SALE OF SHARES
Section 1.1 Authorization..............................................2
Section 1.2 Issuance and Sale of Shares................................2
ARTICLE II
CLOSING
Section 2.1 Closing....................................................2
Section 2.2 Deliveries and Payments....................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 Organization; Subsidiaries.................................3
Section 3.2 Due Authorization..........................................4
Section 3.3 Capitalization.............................................5
Section 3.4 SEC Reports................................................6
Section 3.5 Financial Statements.......................................6
Section 3.6 Consents; No Violations....................................7
Section 3.7 Compliance with Laws.......................................7
Section 3.8 Absence of Certain Changes.................................8
Section 3.9 Litigation.................................................8
Section 3.10 Employee Matters; ERISA....................................8
Section 3.11 Section 203 of the DGCL; Takeover Statute.................10
Section 3.12 Real Property Holding Corporation; Investment
Company; Public Utility Holding Company...................10
Section 3.13 Brokers and Finders.......................................10
Section 3.14 Registration and Qualification............................10
Section 3.15 Opinion of Financial Advisor..............................11
Section 3.16 Negotiations with Third Parties...........................11
Section 3.17 Environmental Laws........................................11
Section 3.18 Title to Assets...........................................12
Section 3.19 Labor Relations...........................................12
Section 3.20 Intellectual Property.....................................13
Section 3.21 Transactions with Affiliates..............................13
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Section 4.1 Organization of the Investors.............................13
Section 4.2 Due Authorization.........................................13
Section 4.3 Consents; No Violations...................................14
Section 4.4 Ownership of Capital Stock................................14
Section 4.5 Investment................................................14
Section 4.6 Rule 144..................................................15
Section 4.7 Brokers and Finders; Transaction Expenses.................15
Section 4.8 No Arrangements with Respect to Company Securities........15
Section 4.9 Sufficient Funds..........................................15
ARTICLE V
CONDITIONS PRECEDENT
Section 5.1 Conditions to Obligations of the Investors
and the Company...........................................15
Section 5.2 Conditions to the Investors' Obligations..................16
Section 5.3 Conditions to the Obligations of the Company..............18
ARTICLE VI
COVENANTS
Section 6.1 Conduct of Business Pending the Closing...................19
Section 6.2 Amendment of Certificate of Incorporation and
By-Laws of the Company....................................20
Section 6.3 Certain Payments..........................................20
Section 6.4 Availability of Common Stock..............................21
Section 6.5 Proxy Statement; Stockholder Approval.....................22
Section 6.6 No Solicitation...........................................24
Section 6.7 HSR Act; Other Filings....................................26
Section 6.8 Consents; Approvals.......................................26
Section 6.9 Debt Refinancing..........................................26
Section 6.10 Listing...................................................26
Section 6.11 Cooperation...............................................26
Section 6.12 Execution and Delivery of Related Agreements..............26
Section 6.13 Use of Proceeds...........................................27
Section 6.14 Investors' Access to Premises; Notices of
Developments..............................................27
Section 6.15 IRS Forms.................................................27
ARTICLE VII
TERMINATION
Section 7.1 Termination...............................................28
Section 7.2 Effect of Termination.....................................30
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Survival of Representations and Warranties................30
Section 8.2 Indemnification...........................................30
Section 8.3 Procedure for Indemnification.............................32
Section 8.4 Sole Remedy...............................................33
ARTICLE IX
MISCELLANEOUS
Section 9.1 Governing Law.............................................34
Section 9.2 Jurisdiction; Forum; Service of Process; Waiver of
Jury Trial................................................34
Section 9.3 Successors and Assigns....................................34
Section 9.4 Entire Agreement; Amendment...............................35
Section 9.5 Notices...................................................35
Section 9.6 Certain Definitions.......................................36
Section 9.7 Counterparts..............................................39
Section 9.8 Severability..............................................39
Section 9.8 Titles and Subtitles......................................39
Section 9.10 No Public Announcement....................................39
Section 9.11 Further Actions...........................................39
Section 9.12 Enforcement of Agreement..................................39
INDEX OF DEFINED TERMS
Affiliate...................................................................39
Agreement....................................................................1
Alternate Proposal..........................................................27
beneficial ownership........................................................39
beneficially owns...........................................................39
Berkshire/Greenbriar Investors..............................................39
Berkshire/Greenbriar Purchase Agreement.....................................39
Berkshire/Greenbriar Registration Rights Agreement..........................19
Board of Directors...........................................................5
Certificate of Incorporation.................................................2
Ciba Pledge Agreements......................................................17
Claim.......................................................................34
Closing......................................................................3
Closing Date.................................................................3
Code.........................................................................9
Common Stock................................................................39
Company......................................................................1
Company Charter Amendment....................................................2
Company Disclosure Schedule..................................................4
Company Indemnified Person..................................................33
Consents....................................................................28
Credit Agreement............................................................39
DGCL.........................................................................5
Encumbrances.................................................................4
Environmental Laws..........................................................39
ERISA........................................................................9
ERISA Affiliate.............................................................10
Exchange Act................................................................39
Expenses....................................................................23
Expiration Date.............................................................30
Fairness Opinions...........................................................12
GAAP.........................................................................7
Goldman Governance Agreement.................................................1
Goldman Registration Rights Agreement........................................2
Governmental Entity.........................................................40
GS 2000......................................................................1
GS 2000 Employee.............................................................1
GS 2000 Germany..............................................................1
GS 2000 Offshore.............................................................1
Hazardous Materials.........................................................40
Xxxxxxxx Xxxxx..............................................................12
HSR Act.....................................................................17
Indemnifying Party..........................................................34
Indemnitee..................................................................34
Investor Indemnified Person.................................................32
Investors....................................................................1
Knowledge...................................................................40
Laws.........................................................................8
Licenses.....................................................................8
Litigation...................................................................9
Losses......................................................................40
Material Adverse Effect.....................................................40
Notice of Superior Proposal.................................................27
NYSE.........................................................................5
PCX..........................................................................5
Person......................................................................41
Plans........................................................................9
Proceeding..................................................................36
Proxy Statement.............................................................23
Purchase Price...............................................................2
Related Agreements...........................................................2
Restated Company By-Laws.....................................................2
Restated Governance Agreement................................................1
Restated Registration Rights Agreement.......................................2
SEC..........................................................................6
SEC Reports..................................................................6
Securities Act...............................................................6
Selected Courts.............................................................36
Senior Debt Refinancing.....................................................18
Series A Certificate of Designations.........................................1
Series A Preferred Shares....................................................1
Series A Preferred Stock.....................................................1
Series B Certificate of Designations.........................................1
Series B Preferred Shares....................................................1
Series B Preferred Stock.....................................................1
Shares.......................................................................1
Significant Subsidiaries....................................................41
Special Meeting.............................................................23
Stockholder Approval........................................................17
Stockholders Agreement......................................................19
Stone Street.................................................................1
Subsidiary..................................................................41
Superior Proposal...........................................................27
Exhibits
--------
Exhibit A -- Form of Series A Preferred Stock Certificate of Designations
Exhibit B -- Form of Series B Preferred Stock Certificate of Designations
Exhibit C -- Form of Restated Governance Agreement
Exhibit D -- Form of Restated Registration Rights Agreement
Exhibit E -- Company Charter Amendment
Exhibit F -- Restated Company By-Laws
Exhibit G -- Terms of Senior Debt Restructuring
Exhibit H -- Form of the Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Exhibit I -- Form of the Opinion of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Exhibit J -- Summary Terms of Equity Incentive Plans
Exhibit K -- Form of Press Release
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement"), is entered into
as of December 18, 2002, by and among Hexcel Corporation, a Delaware
corporation (the "Company"), GS Capital Partners 2000, L.P., a Delaware
limited partnership ("GS 2000"), GS Capital Partners 2000 Offshore, L.P., a
Cayman Islands exempted limited partnership ("GS 2000 Offshore"), GS
Capital Partners 2000 Employee Fund, L.P., a Delaware limited partnership
("GS 2000 Employee"), GS Capital Partners 2000 GmbH & Co. Beteiligungs KG,
a German limited partnership ("GS 0000 Xxxxxxx"), and Stone Street Fund
2000, L.P., a Delaware limited partnership ("Xxxxx Xxxxxx" and together
with GS 2000, GS 2000 Offshore, GS 2000 Employee, GS 2000 Germany, the
"Investors").
W I T N E S S E T H :
WHEREAS, on the terms and subject to the conditions hereof, the
Company desires to sell to the Investors, and the Investors desire to
purchase from the Company, (i) an aggregate of 47,125 shares (the "Series A
Preferred Shares") of Series A Convertible Preferred Stock, without par
value (the "Series A Preferred Stock"), of the Company having the terms set
forth in the Certificate of Designations of the Series A Convertible
Preferred Stock attached hereto as Exhibit A (the "Series A Certificate of
Designations") and (ii) an aggregate of 47,125 shares (the "Series B
Preferred Shares" and, together with the Series A Preferred Shares, the
"Shares") of Series B Convertible Preferred Stock, without par value (the
"Series B Preferred Stock"), of the Company having the terms set forth in
the Certificate of Designations of the Series B Convertible Preferred Stock
attached hereto as Exhibit B (the "Series B Certificate of Designations"),
for an aggregate purchase price of $47,125,000; and
WHEREAS, in connection with the transactions contemplated by this
Agreement, at the Closing (as defined in Section 2.1 below), the Company,
the Investors, LXH, L.L.C., a Delaware limited liability company ("LXH"),
and LXH II, L.L.C., a Delaware limited liability company ("LXH II", and
together with LXH, the "LXH Investors") will enter into (A) an amendment
and restatement of the Governance Agreement, dated as of December 19, 2000,
as amended on April 25, 2001, among the Company, the LXH Investors, and the
Investors (the "Goldman Governance Agreement") in the form of Exhibit C
hereto (the "Restated Governance Agreement") and (B) an amendment and
restatement of the Registration Rights Agreement, dated as of December 19,
2000 among the Company and the LXH Investors (the "Goldman Registration
Rights Agreement"), in the form of Exhibit D hereto (the "Restated
Registration Rights Agreement", and, together with the Restated Governance
Agreement, the "Related Agreements"); and
WHEREAS, on the terms and subject to the conditions hereof, at
the Closing, (i) the Certificate of Incorporation of the Company (as
amended from time to time, the "Certificate of Incorporation") will be
amended substantially as set forth in the form of amendment attached as
Exhibit E hereto (the "Company Charter Amendment"), and (ii) the By-Laws of
the Company will be amended and restated so as to read substantially in the
form attached hereto as Exhibit F (the "Restated Company By-Laws").
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
AUTHORIZATION AND SALE OF SHARES
--------------------------------
Section 1.1 Authorization. Subject to obtaining the Stockholder
Approval (as defined in Section 5.1(c) below), the Company has heretofore
authorized the issuance and sale of the Shares to the Investors at the
Closing pursuant to this Agreement.
Section 1.2 Issuance and Sale of Shares. Upon the terms and
subject to the conditions set forth herein, at the Closing, in reliance on
the representations and warranties of the Investors contained herein, the
Company shall issue and sell to each Investor and, in reliance on the
representations and warranties of the Company contained herein, each such
Investor shall purchase from the Company, the number of Shares indicated on
Schedule 1.2 hereto opposite such Investor's name, for an aggregate
purchase price of $47,125,000 (the "Purchase Price"); provided, that the
Investors shall have the right to reallocate among the Investors the Shares
to be purchased by each Investor by delivering written notice of such
reallocation to the Company not less than two business days prior to the
Closing so long as such reallocation does not (i) change the total number
of Series A Preferred Shares and Series B Preferred Shares being acquired
hereunder or the aggregate Purchase Price or (ii) affect the accuracy of
the Investors' representations contained in Article IV hereof.
ARTICLE II
CLOSING
-------
Section 2.1 Closing. The closing (the "Closing") of the purchase
and sale of the Shares contemplated hereby shall take place on such date
and at such time as shall be mutually agreed to by the Company and the
Investors, but in no event later than two business days following the date
of the Stockholder Approval, subject to satisfaction or waiver of all of
the conditions set forth in Article V (the date of the Closing is
hereinafter referred to as the "Closing Date"). The Closing shall be held
at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times
Square, New York, New York, or at such other place as agreed to by the
Company and the Investors.
Section 2.2 Deliveries and Payments.
(a) Subject to the satisfaction or waiver of each of the
conditions hereof, at the Closing, the Company shall deliver to each
Investor against payment of the Purchase Price: (i) one certificate
representing the appropriate number of Series A Preferred Shares registered
in the name of such Investor as set forth on Schedule 1.2; (ii) one
certificate representing the appropriate number of Series B Preferred
Shares registered in the name of such Investor as set forth on Schedule
1.2; (iii) each of the certificates, instruments and agreements required to
be delivered by the Company pursuant to Article V hereof; (iv) filed copies
of the Company Charter Amendment, the Series A Certificate of Designations
and the Series B Certificate of Designations certified by the Delaware
Secretary of State; (v) such other documents as the Investors may
reasonably request in connection with the Closing; and (vi) payment of fees
and expenses due each Investor at the Closing pursuant to Section 6.3
hereof by wire transfer of immediately available funds to an account or
accounts designated by the Investors prior to the Closing.
(b) Subject to the satisfaction or waiver of each of the
conditions hereof, at the Closing, each of the Investors shall deliver to
the Company: (i) payment of the Purchase Price, by wire transfer of
immediately available funds to an account or accounts designated by the
Company prior to the Closing, for the Shares to be purchased by such
Investor; (ii) each of the certificates, instruments and agreements
required to be delivered by each of the Investors pursuant to Article V
hereof; and (iii) such other documents as the Company may reasonably
request in connection with the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to the Investors, as
of the date hereof and as of the Closing, as follows:
Section 3.1 Organization; Subsidiaries.
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the
requisite corporate power and authority to carry on its business as it is
now being conducted. The Company is duly qualified and licensed as a
foreign corporation to do business, and is in good standing (and has paid
all relevant franchise or analogous taxes), in each jurisdiction where the
character of its assets owned or held under lease or the nature of its
business makes such qualification necessary, except where the failure to so
qualify or be licensed, individually or in the aggregate, has not had and
would not reasonably be expected to have a Material Adverse Effect.
(b) Each Significant Subsidiary is a corporation, limited
liability company, limited partnership or other business entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has the power and authority to carry on
its business as it is now being conducted except where the failure to be in
good standing or to have such power and authority, individually or in the
aggregate, has not had and would not reasonably be expected to have a
Material Adverse Effect. Except as set forth in Section 3.1(b) of the
disclosure schedule delivered by the Company to the Investors on the date
hereof (the "Company Disclosure Schedule"), (i) the Company owns, either
directly or indirectly through one or more Subsidiaries, all of the capital
stock or other equity interests of the Significant Subsidiaries free and
clear of all liens, charges, claims, security interests, restrictions,
options, proxies, voting trusts or other encumbrances ("Encumbrances") and
(ii) there are no outstanding subscription rights, options, warrants,
convertible or exchangeable securities or other rights of any character
whatsoever relating to issued or unissued capital stock or other equity
interests of any Significant Subsidiary, or any contract, agreement or
other commitment of any character whatsoever relating to issued or unissued
capital stock or other equity interests of any Significant Subsidiary or
pursuant to which any Significant Subsidiary is or may become bound to
issue or grant additional shares of its capital stock or other equity
interests or related subscription rights, options, warrants, convertible or
exchangeable securities or other rights, or to grant preemptive rights.
Except for the Subsidiaries and except as set forth on Section 3.1(b) of
the Company Disclosure Schedule, the Company does not own, directly or
indirectly, any interest in any corporation, limited liability company,
partnership, business association or other Person.
Section 3.2 Due Authorization.
(a) The Company has all right, corporate power and authority to
enter into this Agreement and the Related Agreements, and, subject to
obtaining the Stockholder Approval, to consummate the transactions
contemplated hereby and thereby. The execution and delivery by the Company
of this Agreement, the Related Agreements, and the compliance by the
Company with each of the provisions of this Agreement and the Related
Agreements (i) are within the corporate power and authority of the Company,
and (ii) subject to obtaining the Stockholder Approval, have been duly
authorized by all necessary corporate action of the Company. This Agreement
has been, and each of the Related Agreements, when executed and delivered
by the Company, will be, duly and validly executed and delivered by the
Company. This Agreement constitutes, and each of the Related Agreements,
when executed and delivered by the Company will constitute, a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms except as such enforcement is limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally and for limitations imposed by general
principles of equity. The Restated Company By-Laws have been duly adopted
by the Board of Directors of the Company (the "Board of Directors") and
will be effective upon the Closing.
(b) The Shares have been duly authorized by the Company and, when
issued, sold and delivered in accordance with this Agreement, the Shares
will be validly issued, fully paid and nonassessable. At the Closing, no
further approval or authority of the stockholders or the Board of Directors
under the Delaware General Corporation Law (the "DGCL"), the rules of the
New York Stock Exchange (the "NYSE") or the consent of any other party will
be required for the issuance of the Shares. The shares of Common Stock
issuable upon conversion of the Shares have been duly authorized by the
Company and, when issued upon conversion of the Shares in accordance with
the Series A Certificate of Designations or the Series B Certificate of
Designations, as appropriate, will be validly issued, fully paid and
nonassessable. At the Closing, the shares of Common Stock issuable upon
conversion of the Shares at the initial conversion price will be reserved
for issuance, and no further approval or authority of the stockholders or
the Board of Directors under the DGCL, the rules of the NYSE or the consent
of any other party, other than the approval of the NYSE and the Pacific
Exchange, Inc. (the "PCX") of the listing of such shares of Common Stock on
the NYSE and PCX, will be required for such issuance of Common Stock. No
preemptive rights or other rights to subscribe for or purchase securities
exist with respect to the issuance and sale of the Shares or the issuance
of shares of Common Stock issuable upon conversion of the Shares other than
such rights held pursuant to the Goldman Governance Agreement, the Restated
Governance Agreement and the Stockholders Agreement.
Section 3.3 Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of (i) 100,000,000 shares of Common
Stock, of which as of December 13, 2002, 38,419,559 shares were issued and
outstanding excluding 1,204,358 shares of Common Stock held in the
Company's treasury as of such date, (ii) 20,000,000 shares of preferred
stock, without par value, of which no shares are issued and outstanding.
All of the issued and outstanding shares of Common Stock have been duly
authorized and are validly issued, fully paid and nonassessable and not
subject to the preemptive or other similar rights of the stockholders of
the Company, other than such rights held pursuant to the Goldman Governance
Agreement, the Restated Governance Agreement and the Stockholders
Agreement. As of the date hereof, there is outstanding (i) $46,935,000 in
aggregate principal amount of the Company's 7.0% Convertible Subordinated
Notes due 2003, which notes are convertible into 2,968,690 shares of Common
Stock and (ii) $22,750,000 in aggregate principal amount of the Company's
7.0% Convertible Subordinated Debentures, due 2011, which notes are
convertible into 740,559 shares of Common Stock. Except as described in the
SEC Reports (as defined below) filed prior to the date hereof and other
than pursuant to stock incentive plans approved by the Board of Directors,
the Stockholders Agreement, the Goldman Governance Agreement and the
Restated Governance Agreement, there are no outstanding subscription
rights, options, warrants, convertible or exchangeable securities or other
rights of any character whatsoever relating to issued or unissued capital
stock of the Company, or any contract or agreement of any character
whatsoever relating to issued or unissued capital stock of the Company or
pursuant to which the Company is or may become bound to issue or grant
additional shares of its capital stock or related subscription rights,
options, warrants, convertible or exchangeable securities or other rights,
or to grant preemptive rights. Other than as set forth on Section 3.3 of
the Company Disclosure Schedule, (i) the Company has no currently existing
agreement to register any securities under the Securities Act of 1933, as
amended (the "Securities Act"), or under any state securities law and has
not granted registration rights to any Person or entity which have not
expired and (ii) there are no voting trusts, stockholders agreements,
proxies or other contracts or agreements or understandings in effect to
which the Company is a party or of which it has Knowledge with respect to
the voting or transfer of any of the outstanding shares of Common Stock.
Section 3.4 SEC Reports. The Company has timely filed all proxy
statements, reports and other documents required to be filed by it with the
Securities and Exchange Commission (the "SEC") under the Exchange Act or
otherwise since January 1, 1999, and made available to the Investors
complete copies of all annual reports, proxy statements and other reports
filed by the Company with the SEC, each as filed with the SEC
(collectively, the "SEC Reports"). Each SEC Report was, on the date of its
filing, in compliance in all material respects with the requirements of its
respective report form and the applicable Law and did not, on the date of
its filing, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
Section 3.5 Financial Statements. The consolidated financial
statements of the Company (including any related schedules and/or notes)
included in the SEC Reports have been prepared in accordance with United
States generally accepted accounting principles ("GAAP") consistently
followed throughout the periods involved (except as may be indicated in the
notes thereto) and fairly present in accordance with GAAP the consolidated
financial condition, results of operations, stockholders' equity,
comprehensive income and cash flows of the Company and the Subsidiaries as
of the respective dates thereof and for the respective periods then ended
(except as may be indicated in the notes thereto and except, in the case of
interim statements, for the absence of footnotes and as permitted by Form
10-Q and subject to changes resulting from year-end adjustments, none of
which are material in amount or effect). Except as disclosed in the SEC
Reports filed prior to the date hereof, neither the Company nor any
Subsidiary has any liability or obligation (whether accrued, absolute,
contingent, unliquidated or otherwise, whether known or unknown, whether
due or to become due and regardless of when asserted), except for (i)
liabilities and obligations reflected or disclosed in the audited
consolidated balance sheet of the Company and its Subsidiaries as of
December 31, 2001, or the unaudited consolidated balance sheet of the
Company and its Subsidiaries as of September 30, 2002, or the footnotes
thereto, (ii) liabilities and obligations incurred in the ordinary course
of business since September 30, 2002, or (iii) liabilities and obligations
which, individually or in the aggregate, have not had and would not
reasonably be expected to have or result in a Material Adverse Effect.
Section 3.6 Consents; No Violations. Except as set forth in
Section 3.6 of the Company Disclosure Schedule, the execution, delivery or
performance by the Company of this Agreement and the Related Agreements,
and the consummation of the transactions contemplated hereby and thereby,
do not and will not (i) assuming the effectiveness of the Company Charter
Amendment, the Series A Certificate of Designations, the Series B
Certificate of Designations and the Restated Company By-Laws, conflict
with, or result in a breach or a violation of, any provision of the
certificate of incorporation or by-laws or other organizational documents
of the Company or any of its Subsidiaries, (ii) constitute, with or without
notice or the passage of time or both, a breach, violation or default,
create an Encumbrance, or give rise to any right of termination,
modification, cancellation, prepayment, suspension, limitation, revocation
or acceleration, under (A) any Law or (B) any provision of any agreement or
other instrument to which the Company or any of the Subsidiaries is a party
or pursuant to which any of them or any of their assets or properties is
subject, except where such breach, violation or default, creation of an
Encumbrance, or right of termination, modification, cancellation,
prepayment, suspension, limitation, revocation or acceleration,
individually or in the aggregate, has not had and would not reasonably be
expected to have a Material Adverse Effect or (iii) except for (A) the
filing of the Company Charter Amendment, the Series A Certificate of
Designations and the Series B Certificate of Designations with the
Secretary of State of the State of Delaware, (B) the approval of the NYSE
and the PCX of the listing of the shares of Common Stock issuable upon
conversion of the Shares on the NYSE and PCX, (C) the Stockholder Approval
and the filing with the SEC of the Proxy Statement (as defined below)
relating thereto, (D) any required filing under the HSR Act and any foreign
governmental and regulatory filings, notices and approvals required to be
made or obtained as contemplated by Section 5.1(e), and (E) any filings,
consents, approvals or authorizations of, notifications to, or exemptions
or waivers by any Governmental Entity or any other Person which are not,
individually or in the aggregate, material to the consummation of the
transactions contemplated hereby or thereby, require any consent, approval
or authorization of, notification to, filing with, or exemption or waiver
by, any Governmental Entity or any other Person on the part of the Company
or any of its Subsidiaries.
Section 3.7 Compliance with Laws. Except as disclosed in the SEC
Reports filed prior to the date hereof, the Company and its Subsidiaries
are, and since January 1, 2000, have been, in compliance in all material
respects with all foreign, federal, state, and local laws, statutes,
ordinances, rules, regulations, orders, injunctions, judgments, decrees and
bodies of law (collectively, "Laws"), and the Company and its Subsidiaries
possess all material licenses, franchise permits, consents, registrations,
certificates, and other governmental or regulatory permits, authorizations
or approvals required for the operation of the business as presently
conducted and for the ownership, lease or operation of the Company's and
its Subsidiaries' properties (collectively, "Licenses"), except where such
noncompliance or failure to possess, individually or in the aggregate, has
not had and would not reasonably be expected to have a Material Adverse
Effect. All of such Licenses are valid and in full force and effect, and
the Company and its Subsidiaries have duly performed and are in compliance
in all material respects with all of their obligations under such Licenses
except where such suspension or cancellation of such Licenses or the
noncompliance with such Licenses, individually or in the aggregate, has not
had and would not reasonably be expected to have a Material Adverse Effect.
In the conduct of its business, neither the Company nor any of its
Subsidiaries nor, to the Company's Knowledge, any director, officer, agent,
employee or other Person acting on behalf of the Company or any of its
Subsidiaries, has, in any material respect, (i) used any corporate or other
funds for unlawful contributions, payments, gifts or entertainment, or made
any unlawful expenditures relating to political activity to government
officials or others or established or maintained any unlawful or unrecorded
funds in violation of Section 30A of the Exchange Act or (ii) accepted or
received any unlawful contributions, payments, gifts or expenditures.
Section 3.8 Absence of Certain Changes. Since June 30, 2002,
neither the Company nor any of the Subsidiaries has suffered any change,
event or development or series of changes, events or developments which,
individually or in the aggregate, has had or would reasonably be expected
to have a Material Adverse Effect.
Section 3.9 Litigation.
(a) Except as set forth in Section 3.9(a) of the Company
Disclosure Schedule or as disclosed in the SEC Reports filed prior to the
date hereof, there is no claim, action, suit, investigation or proceeding
("Litigation") pending or, to the Knowledge of the Company, threatened
against the Company or any of its Subsidiaries or involving any of their
respective properties or assets by or before any court, arbitrator or other
Governmental Entity which (i) in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated by this
Agreement or (ii) if resolved adversely to the Company or a Subsidiary,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect. The statements contained on Schedule 3.9(a) hereto
are true and correct as of the date hereof.
(b) Except as disclosed in the SEC Reports filed prior to the
date hereof, neither the Company nor any of its Subsidiaries is in default
under or in breach of any order, judgment or decree of any court,
arbitrator or other Governmental Entity, except for defaults or breaches,
which, individually or in the aggregate, have not had and would not
reasonably be expected to have a Material Adverse Effect.
Section 3.10 Employee Matters; ERISA.
(a) All (i) "employee benefit plans," as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), other than any "multiemployer plan," as defined in Section
3(37)(A) of ERISA, maintained or contributed to by the Company or any of
its Subsidiaries and (ii) other plans, agreements or arrangements relating
to compensation or employee benefits pursuant to which the Company or any
of its Subsidiaries may have any material liability (collectively, the
"Plans"), are in compliance with all applicable provisions of ERISA and the
Internal Revenue Code of 1986, as amended (the "Code"), and the Company and
its Subsidiaries do not have any liabilities or obligations (other than
liabilities and obligations for benefits payable in the ordinary course)
with respect to any Plan, whether or not accrued, contingent or otherwise,
except (a) as described in any of the SEC Reports filed prior to the date
hereof or previously disclosed in writing to the Investors and (b) for
instances of noncompliance or liabilities or obligations that, individually
or in the aggregate, have not had and would not reasonably be expected to
have a Material Adverse Effect. Except such of the following as,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect, (x) neither the Company nor any
trade or business, whether or not incorporated (an "ERISA Affiliate"),
which together with the Company would be deemed a "single employer" within
the meaning of Section 414 of the Code or Section 4001(b) of ERISA, has
incurred any unsatisfied liability under Title IV of ERISA and no
conditions exist that could reasonably be expected to present a risk to the
Company or any ERISA Affiliate of incurring any such liability (other than
liability for premiums to the Pension Benefit Guaranty Corporation arising
in the ordinary course), and (y) no "employee benefit plan" maintained or
contributed to by the Company or any ERISA Affiliate, other than a
"multiemployer plan" as defined in Section 3(37)(A) of ERISA, has incurred
an "accumulated funding deficiency" (within the meaning of Section 302 of
ERISA or Section 412 of the Code) whether or not waived. As to any
"multiemployer plan" maintained or contributed to by the Company or any of
its Subsidiaries or ERISA Affiliate of the Company, neither the Company nor
any ERISA Affiliate has any Knowledge (a) that such plan is not in
substantial compliance with the applicable provisions of ERISA and the
Code; or (b) that such plan has incurred an "accumulated funding
deficiency" (within the meaning of Section 302 of ERISA or Section 412 of
the Code) whether or not waived.
(b) Each Plan which is intended to be qualified under Section
401(a) of the Code is the subject of a favorable determination letter from
the IRS, and, to the Company's Knowledge, nothing has occurred which may
reasonably be expected to result in the revocation of such determination.
(c) Except as set forth on Section 3.10(c) of the Company
Disclosure Schedule, the execution and delivery of, and performance of the
transactions contemplated in, this Agreement will not (either alone or upon
the occurrence of any additional or subsequent events) (i) constitute an
event under any Plan (or related trust), trust or loan that will or may
result in any material payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase
in benefits or obligation to fund benefits with respect to any current or
former employee or director of the Company or any subsidiary of the
Company, or (ii) result in the triggering or imposition of any material
restrictions or limitations on the right of the Company or any of its
Subsidiaries to amend or terminate any Plan.
Section 3.11 Section 203 of the DGCL; Takeover Statute. The Board
of Directors has taken all actions necessary or advisable so that the
restrictions contained in Section 203 of the DGCL applicable to a "business
combination" (as defined in such Section) will not apply to the execution
by the Investors of this Agreement or the consummation of any of the
transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement will not cause to be applicable to the
Company any "fair price," "moratorium," "control share acquisition" or
other similar antitakeover statute or regulation enacted under state or
federal laws.
Section 3.12 Real Property Holding Corporation; Investment
Company; Public Utility Holding Company. The Company is not, and has not
been at any time during the past five years, a "United States real property
holding corporation" within the meaning of Section 897(c)(2) of the Code.
Neither the Company nor any of its Subsidiaries is an "investment company"
or a "company controlled by an investment company" or an "affiliated
person" or "promoter" or "principal underwriter" for, an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended, or a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 3.13 Brokers and Finders. Except as set forth in Section
3.13 of the Company Disclosure Schedule, no agent, broker, investment
banker, financial advisor or other firm or Person is or will be entitled to
any broker's or finder's fee or any other commission or similar fee in
connection with any of the transactions contemplated by this Agreement
based on any agreement, arrangement or understanding with the Company or
any of its Subsidiaries.
Section 3.14 Registration and Qualification.
(a) Assuming the accuracy of the representations and warranties
made by the Investors set forth in Article IV hereof, it is not necessary
in connection with the offer, sale and delivery of the Shares to the
Investors in the manner contemplated by this Agreement to register the
Shares, or the shares of Common Stock issuable upon conversion of the
Shares, under the Securities Act or the securities laws of any state
thereof.
(b) The Company has not, directly or indirectly, offered, sold or
solicited any offer to buy and will not, directly or indirectly, offer,
sell or solicit any offer to buy, any security of a type or in a manner
which would be integrated with the sale of the Shares and require any of
the Shares to be registered under the Securities Act. None of the Company,
its Subsidiaries or any person acting on its or any of their behalf has
engaged or will engage in any form of general solicitation or general
advertising (within the meaning of Rule 502(c) under the Securities Act) in
connection with the offering of the Shares.
Section 3.15 Opinion of Financial Advisor. The Board of Directors
has received the opinions of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial
Advisors, Inc. ("Xxxxxxxx Xxxxx"), financial advisor to the Board of
Directors, to the effect that, as of the date of each such opinion, (i) the
transactions contemplated by this Agreement and the Berkshire/Greenbriar
Purchase Agreement are fair, from a financial point of view to the Company
and its public stockholders, other than the Investors and the
Berkshire/Greenbriar Investors and (ii) the transactions contemplated by
this Agreement and the Berkshire/Greenbriar Purchase Agreement are fair,
from a financial standpoint to the Company and its Restricted Subsidiaries
(as such term is defined in the Indenture, dated January 21, 1999, between
the Company and The Bank of New York, as trustee, relating to the issuance
of the Company's 9-3/4% Senior Subordinated Notes due 2009) (together, the
"Fairness Opinions").
Section 3.16 Negotiations with Third Parties. Except in
connection with the transactions contemplated by this Agreement and the
Berkshire/Greenbriar Purchase Agreement and subject to Section 6.6, the
Company is not as of the date hereof, and since November 8, 2002, has not
been, directly or indirectly, negotiating, seeking to negotiate or
otherwise engaging in discussions with any Person (other than with respect
to the restructuring transactions set forth in Section 6.1 of the Company's
Disclosure Schedule) relating to (a) an acquisition of greater than 20% of
the Common Stock, (b) a tender or exchange offer for the Common Stock, (c)
a merger, consolidation or other business combination involving the Company
or any of its material Subsidiaries, or (d) an offer to acquire in any
manner a greater than 20% equity interest in the Company, or more than 20%
of the assets of the Company and its Subsidiaries, taken as a whole.
Section 3.17 Environmental Laws. Except as set forth in Section
3.17 of the Company Disclosure Schedule and except as disclosed in the SEC
Reports filed prior to the date hereof, each of the Company and its
Subsidiaries is in compliance with all Environmental Laws applicable to
such entity or its business except for such non-compliances as,
individually or in the aggregate, has not had and would not reasonably be
expected to have a Material Adverse Effect. Except as set forth in Section
3.17 of the Company Disclosure Schedule, neither the Company nor any of its
Subsidiaries has received written notice of, or is aware of, any violation
or alleged violation, or any liability or asserted liability, under any
Environmental Law, with respect to such entity or its business or its
premises which, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect. Except as set
forth in Section 3.17 of the Company Disclosure Schedule, neither the
Company nor any of its Subsidiaries has any liability for environmental
clean-up, removal, remediation, or damages, except for such environmental
clean-up, removal, remediation, or damages, as, individually or in the
aggregate, has not had and would not reasonably be expected to have a
Material Adverse Effect.
Section 3.18 Title to Assets. Except for such encumbrances which,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect, each of the Company and its
Subsidiaries has good and marketable title, subject only to the
encumbrances not prohibited by the Credit Agreement, to all personal
property purported to be owned by it and to all property reflected in the
most recent balance sheet referred to in Section 3.5 (except as sold or
otherwise disposed of in the ordinary course of business as no longer used
or useful in the conduct of the business). Except as had not had and would
not reasonably be expected to have a Material Adverse Effect, each material
lease of real and personal property to which the Company or any of its
Subsidiaries is a party is in full force and effect and, except for such
defaults as, individually or in the aggregate, have not had and would not
reasonably be expected to have a Material Adverse Effect, is not subject to
termination because of default or otherwise.
Section 3.19 Labor Relations. As of the date hereof, the Company
represents that, to its Knowledge, except as set forth in Section 3.19 of
the Company Disclosure Schedule, (a) except for such strikes as,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect, no strikes against either the
Company or its Subsidiaries are pending or, to the Company's Knowledge,
threatened, and no other labor disputes that, individually or in the
aggregate, have not had and would reasonably be expected to have a Material
Adverse Effect are pending or, to the Company's Knowledge, threatened; (b)
except as have not had and would not reasonably be expected to have a
Material Adverse Effect, hours worked by and payment made to employees of
the Company or any of its Subsidiaries comply with the Fair Labor Standards
Act and each other federal, state, local or foreign law applicable to such
matter; (c) except as have not had and would not reasonably be expected to
have a Material Adverse Effect, all payments due from either the Company or
its Subsidiaries for employee health and welfare insurance have been paid
or accrued as a liability on the books of such entity; (d) neither the
Company nor any of its Subsidiaries is a party to or bound by any
collective bargaining agreement, management agreement, consulting agreement
or any employment agreement, except for any collective bargaining
agreement, management agreement, consulting agreement or any employment
agreement as, individually or in the aggregate, have not had and would not
reasonably be expected to have a Material Adverse Effect; (e) except as has
not had and would not reasonably be expected to have a Material Adverse
Effect, there is no organizing activity involving either the Company or its
Subsidiaries pending or, to either the Company or its Subsidiaries'
Knowledge, threatened by any labor union or group of employees; (f) except
as have not had and would not reasonably be expected to have a Material
Adverse Effect, there are no representation proceedings pending or, to the
Company's Knowledge, threatened with the National Labor Relations Board,
and no labor organization or group of employees of either the Company or
its Subsidiaries has made a pending demand for recognition; and (g) there
are no complaints or charges against either the Company or its Subsidiaries
pending or, to the Knowledge of the Company, threatened to be filed with
any Governmental Authority or arbitrator based on, arising out of, in
connection with, or otherwise relating to the employment or termination of
employment by either the Company or its Subsidiaries of any individual
which, individually or in the aggregate, if adversely determined, would
reasonably be expected to have a Material Adverse Effect.
Section 3.20 Intellectual Property. Each of the Company and its
Subsidiaries owns or is licensed or otherwise possesses sufficient rights
to use and transfer such rights in all the patents, trademarks, service
marks, trade names, copyrights, know-how, franchises, software and software
licenses used in or necessary for the operation of its business as
currently conducted, except where such failure to own, license or possess
the right to use and transfer, individually or in the aggregate, has not
had and would not reasonably be expected to have a Material Adverse Effect.
Section 3.21 Transactions with Affiliates. Except as set forth in
Section 3.21 of the Company Disclosure Schedule or the SEC Reports filed
prior to the date hereof and except for events (or series of related
matters) as to which the amounts involved are not material to the Company,
since the Company's proxy statement dated April 2, 2002, no event has
occurred that would be required to be reported as a "Certain Relationship
or Related Transaction" pursuant to Item 404 of Regulation S-K promulgated
by the SEC.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
-----------------------------------------------
Each Investor hereby represents and warrants to the Company,
solely as to itself, separately and not jointly, as of the date hereof and
as of the Closing, as follows:
Section 4.1 Organization of the Investors. Such Investor is duly
organized and validly existing under the laws of the jurisdiction of its
organization and has the requisite power and authority to carry on its
business as it is now being conducted.
Section 4.2 Due Authorization. Such Investor has all right, power
and authority to enter into this Agreement and the Related Agreements and
to consummate the transactions contemplated hereby and thereby. The
execution and delivery by such Investor of this Agreement and each of the
Related Agreements, and the compliance by such Investor with each of the
provisions of this Agreement and the Related Agreements (a) are within the
power and authority of such Investor and (b) have been duly authorized by
all necessary action on the part of such Investor. This Agreement has been,
and each of the Related Agreements when executed and delivered by such
Investor at the Closing in accordance with the terms of this Agreement will
be, duly and validly executed and delivered by such Investor, and this
Agreement constitutes, and each of the Related Agreements when executed and
delivered by such Investor will constitute, a valid and binding agreement
of such Investor enforceable against such Investor in accordance with its
respective terms except as such enforcement is limited by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors'
rights generally and for limitations imposed by general principles of
equity.
Section 4.3 Consents; No Violations. Neither the execution,
delivery or performance by such Investor of this Agreement and the Related
Agreements nor the consummation of the transactions contemplated hereby or
thereby will (a) conflict with, or result in a breach or a violation of,
any provision of the organizational documents of such Investor, (b)
constitute, with or without notice or the passage of time or both, a
breach, violation or default, create an Encumbrance, or give rise to any
right of termination, modification, cancellation, prepayment, suspension,
limitation, revocation or acceleration, under (i) any Law or (ii) any
provision of any agreement or other instrument to which such Investor is a
party or pursuant to which such Investor or its assets or properties is
subject, or (c) except for any required filing under the HSR Act and any
foreign governmental and regulatory filings, notices and approvals required
to be made or obtained as contemplated by Section 5.1(e) hereof, and
filings, consents, approvals or authorizations of, notifications to, or
exemptions or waivers by any Governmental Entity or any other Persons which
are not, individually or in the aggregate, material to the consummation of
the transactions contemplated hereby or thereby, require any consent,
approval or authorization of, notification to, filing with, or exemption or
waiver by, any Governmental Entity or any other Person on the part of such
Investor.
Section 4.4 Ownership of Capital Stock. As of the date hereof,
except for the 14,525,000 shares of Common Stock beneficially owned by the
Limited Partnerships, neither such Investor nor any of its respective
subsidiaries, directors, officers or members beneficially owns, directly or
indirectly, any capital stock of the Company.
Section 4.5 Investment.
(a) Such Investor is acquiring Shares for investment for its own
account, and not with a view to any distribution thereof in violation of
the securities laws. Such Investor understands that the Shares have not
been registered under the Securities Act by reason of specific exemptions
therefrom which depend upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Investor's representations as
expressed herein.
(b) Such Investor's financial condition and investments are such
that it is in a position to bear the economic risks of the investment and
withstand the complete loss of the investment. Such Investor has extensive
knowledge and experience in financial and business matters and has the
capability to evaluate the merits and risks of an investment in such
Shares.
(c) Such Investor qualifies as an "accredited investor" as such
term is defined in Section 2(15) of the Securities Act and Regulation D
promulgated thereunder.
Section 4.6 Rule 144. Such Investor acknowledges that the Shares
to be purchased by such Investor must be held indefinitely unless
subsequently registered under the Securities Act or any applicable state
securities laws or unless exemptions from such registrations are available.
Such Investor is aware of the provisions of Rule 144 promulgated under the
Securities Act that permit limited resale of securities purchased in a
private placement subject to the satisfaction of certain conditions.
Section 4.7 Brokers and Finders; Transaction Expenses. No agent,
broker, investment banker, financial advisor or other firm or Person is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee in connection with any of the transactions contemplated by this
Agreement based on any agreement, arrangement or understanding with such
Investor.
Section 4.8 No Arrangements with Respect to Company Securities.
Except for arrangements, agreements or understandings between and among the
Investors and their Affiliates, none of the Investors or any of their
respective Affiliates has any arrangement, agreement or understanding with
any other Person (other than arrangements, agreements or understandings (A)
with the Company (as in effect on the date hereof and to be entered into at
Closing) and (B) as contemplated by (i) the Pledge Agreement, dated as of
December 19, 2000, by LXH in favor of Ciba Specialty Chemicals Corporation,
(ii) the Pledge Agreement, dated as of December 19, 2000, by LXH II in
favor of Ciba Specialty Chemicals Corporation ((i) and (ii) collectively,
the "Ciba Pledge Agreements"), and (iii) the notes issued in connection
with the Ciba Pledge Agreements) for the purpose of acquiring, holding,
voting or disposing of beneficial ownership of Voting Securities (as such
term is defined the Goldman Governance Agreement) of the Company.
Section 4.9 Sufficient Funds. Such Investor has available, or has
obtained commitments for, sufficient funds to acquire its portion of the
Shares to be purchased pursuant to this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
--------------------
Section 5.1 Conditions to Obligations of the Investors and the
Company. The respective obligations of each of the Investors and the
Company to consummate the transactions contemplated hereby shall be subject
to the satisfaction or waiver at or prior to the Closing of each of the
following conditions:
(a) HSR Approval. The applicable waiting period (and any
extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended (the "HSR Act"), if any, relating to the transactions
contemplated by this Agreement shall have been terminated or shall have
expired.
(b) Laws. No Laws shall be in effect which prohibit the
consummation of the transactions contemplated hereby.
(c) Stockholder Approval. The approval of holders of the
requisite number of the shares of Common Stock outstanding on the record
date for the Special Meeting (as defined below) in accordance with the
requirements of the DGCL and the rules of the NYSE and PCX, as applicable,
shall have been received for (i) the issuance of the Shares and the shares
of Common Stock issuable upon conversion of the Shares, (ii) the issuance
and sale of 77,875 shares of Series A Preferred Stock and 77,875 shares of
Series B Preferred Stock to the Berkshire/Greenbriar Investors pursuant to
the Berkshire/Greenbriar Purchase Agreement and (iii) the Company Charter
Amendment (the "Stockholder Approval").
(d) Senior Debt Restructuring. The Company shall have consummated
a refinancing or restructuring of its Credit Agreement (the "Senior Debt
Refinancing") on terms and conditions no less favorable to the Company than
those set forth in Exhibit G hereto.
(e) Foreign Governmental and Regulatory Filings. The Company
and/or the Investors shall have made any material foreign governmental and
regulatory filings, given all material notices and obtained any material
approvals that the Company and the Investors reasonably agree are required
in connection with the consummation of the transactions contemplated by
this Agreement and the Related Agreements.
(f) NYSE and PCX Listing. The shares of Common Stock issuable
upon conversion of the Shares shall have been approved for listing on the
NYSE and PCX, subject to official notice of issuance.
(g) Receipt of Proceeds. The Company shall have received or shall
receive simultaneously with the Closing gross proceeds (before giving
effect to the payment of fees and expenses) of not less than $77,875,000
from simultaneous issuances of its Series A Preferred Stock and Series B
Preferred Stock to parties other than the Investors on the terms provided
to the Investors on the date hereof.
Section 5.2 Conditions to the Investors' Obligations. The
obligation of each of the Investors to consummate the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing of each of the following conditions:
(a) Representations and Warranties. All of the representations
and warranties of the Company set forth in this Agreement shall be true and
correct, in each case as of the date of this Agreement and as of the
Closing Date, as if made at and as of such time, except (i) to the extent
expressly made as of an earlier date, in which case as of such date, (ii)
in the case of any of the representations and warranties (other than those
set forth in the second sentence of Section 3.1(b), Sections 3.2-3.6,
Sections 3.11-3.16 and Section 3.21) where the failure to be true and
correct (without giving effect to any limitation as to "materiality" or
"Material Adverse Effect" set forth therein) would not have a Material
Adverse Effect, (iii) in the case of the representations and warranties set
forth in the second sentence of Section 3.1(b), Sections 3.2-3.6, Sections
3.11-3.16 and Section 3.21, which shall be true and correct in all material
respects on each such date (except to the extent statements in such
representations and warranties are qualified by "materiality" or "Material
Adverse Effect", which statements shall be true and correct in all respects
on each such date), and (iv) for changes specifically permitted by this
Agreement.
(b) Performance of Obligations. The Company shall have performed,
satisfied and complied with, in all material respects, all covenants and
agreements set forth in this Agreement required to be performed by it under
this Agreement at or prior to the Closing.
(c) Director Resignation. A director of the Company shall have
resigned from the Board of Directors effective as of the Closing.
(d) Officer's Certificates. The Company shall have delivered to
the Investors a certificate signed by its chief executive officer, dated
the Closing Date, in form and substance reasonably satisfactory to the
Investors, to the effect that the conditions set forth in Sections 5.2(a),
5.2(b) and 5.2(c) have been satisfied.
(e) Material Adverse Effect. Since June 30, 2002, there shall not
have occurred any change, event or development or series of changes, events
or developments which, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect.
(f) Related Agreements. At or prior to the Closing, the Company
shall have delivered to each of the Investors originals of each of (i) the
Related Agreements, (ii) the Stockholders Agreement, dated as of the
Closing Date, among the Company, the Berkshire/Greenbriar Investors,
Berkshire Fund V Limited Partnership, Berkshire Fund VI Limited
Partnership, Greenbriar Equity Capital, L.P., and Greenbriar Holdings, LLC
(the "Stockholders Agreement") and (iii) the Registration Rights Agreement,
dated as of the Closing Date, among the Company and the
Berkshire/Greenbriar Investors (the "Berkshire/Greenbriar Registration
Rights Agreement"), in each case, duly executed by the Company and each of
the other parties thereto.
(g) Other Deliveries. The Company shall have made the deliveries
set forth in Section 2.2(a) hereof. Items delivered pursuant to Section
2.2(a)(v) shall include, without limitation, a certificate of the Company's
Chief Executive Officer and Chief Financial Officer certifying that the
transactions contemplated by this Agreement do not violate the terms of the
Senior Debt Refinancing, and as to such officers' good faith belief, based
on projections prepared by the Company using assumptions believed to be
reasonable in good faith, that the Company will be able to satisfy the
financial covenants contained in the Senior Debt Financing, or such similar
certifications as are reasonably acceptable to the Investors.
(h) Certificates of Designations. Each of the Series A
Certificate of Designations and the Series B Certificate of Designations
shall have been duly filed with the Secretary of State of the State of
Delaware, shall have become effective and shall be in full force and
effect.
(i) Legal Opinion. The Investors shall have received an opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Company, dated the Closing Date and addressed to each Investor, in the form
attached hereto as Exhibit H.
(j) Financing Document Amendments. The Company shall have not
amended, modified, waived, terminated or otherwise altered in any material
respect the provisions, terms or conditions of any other agreements between
the Company and any other Person with respect to an investment in shares of
Series A Preferred Stock and Series B Preferred Stock and the rights and
obligations incident thereto without the Investors' consent.
Section 5.3 Conditions to the Obligations of the Company. The
obligation of the Company to consummate the transactions contemplated
hereby shall be subject to the satisfaction at or prior to the Closing of
each of the following conditions:
(a) Representations and Warranties. All of the representations
and warranties of the Investors set forth in this Agreement shall be true
and correct in all material respects, in each case as of the date of this
Agreement and as of the Closing Date, as if made at and as of such time,
except (i) to the extent expressly made as of an earlier date, in which
case as of such date and (ii) in the case of the representations and
warranties set forth in Sections 4.1, 4.2, and 4.8, which shall be true and
correct in all respects on each such date.
(b) Performance of Obligations. The Investors shall have
performed, satisfied and complied with, in all material respects, all
covenants and agreements set forth in this Agreement required to be
performed by any of them under this Agreement at or prior to the Closing.
(c) Officers' Certificates. Each of the Investors shall have
delivered to the Company a certificate signed by an authorized signatory
thereof, dated the Closing Date, in form and substance reasonably
satisfactory to the Company, to the effect that the conditions set forth in
Section 5.3(a) and 5.3(b) have been satisfied.
(d) Related Agreements. At or prior to Closing, the Investors
shall have delivered to the Company originals of the Related Agreements
duly executed by each of the Investors and each of the LXH Investors.
(e) Other Deliveries. The Investors shall have made the
deliveries set forth in Section 2.2(b) hereof.
(f) Legal Opinion. The Company shall have received an opinion of
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel to the Investors,
dated the Closing Date and addressed to the Company, in the form attached
hereto as Exhibit I.
ARTICLE VI
COVENANTS
---------
Section 6.1 Conduct of Business Pending the Closing. The Company
covenants and agrees that, during the period from the date of this
Agreement and continuing until the earlier of the termination of this
Agreement or the Closing (A) unless the Investors otherwise agree in
writing, (B) except as set forth in Section 6.1 of the Company Disclosure
Schedule or (C) except for those actions specifically set forth in Sections
2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form
attached hereto as Exhibit C, which are permitted to be taken by the
Company or its Significant Subsidiaries without the approval of a majority
of the directors appointed by the Investors to the Board of Directors, the
Company shall, and shall cause each of its Significant Subsidiaries to, (i)
conduct its business only in the ordinary course and consistent with past
practice; (ii) use reasonable best efforts to preserve and maintain its
assets and properties and its relationships with its customers, suppliers,
advertisers, distributors, agents, officers and employees and other persons
with which it has significant business relationships; (iii) use its
reasonable best efforts to maintain all of the material assets it owns or
uses in the ordinary course of business consistent with past practice; (iv)
use its reasonable best efforts to preserve the goodwill and ongoing
operations of its business; (v) maintain its books and records in the
usual, regular and ordinary manner, on a basis consistent with past
practice; and (vi) comply in all material respects with applicable Laws.
Notwithstanding the foregoing and except as expressly contemplated by this
Agreement or as set forth on Section 6.1 of the Company Disclosure
Schedule, between the date of this Agreement and the Closing, the Company
shall not, and shall cause each of its Significant Subsidiaries not to, do
any of the following without the prior written consent of the Investors,
which consent shall not be unreasonably withheld or delayed:
(a) amend the Certificate of Incorporation or bylaws or other
organizational documents except as contemplated by this Agreement;
(b) become liable in respect of any guarantee or incur, assume or
otherwise become liable in respect of any debt, except for guarantees or
borrowings in the ordinary course of business as permitted under the Credit
Agreement;
(c) make any declaration, setting aside or payment of any
dividend or other distribution with respect to, or any repurchase,
redemption, early repayment or other acquisition of, any of its capital
stock, securities directly or indirectly convertible into capital stock, or
debt instruments, except as required by the terms thereof;
(d) take any action that is reasonably likely to result in (i)
any of the representations and warranties set forth in Article III (as
modified by any section of the Company Disclosure Schedule relating
thereto) becoming false or inaccurate in any material respect as of, or at
any time prior to, the Closing Date or (ii) any of the conditions to the
obligations of the Investors set forth in Section 5.2(a) or (b) not being
satisfied;
(e) amend, modify, waive, terminate or otherwise alter in any
material respect the provisions, terms or conditions of any other
agreements between the Company and any other Person that has committed to
purchase shares of Series A Preferred Stock and Series B Preferred Stock or
any agreements to be entered into in connection therewith; or
(f) agree to take any of the actions restricted by this Section
6.1.
Notwithstanding the foregoing, nothing in this Section 6.1 shall
in any way be deemed to restrict or prohibit the Company's or its
Subsidiaries' ability to (i) pay fees to the lenders under the Credit
Agreement, (ii) enter into waivers with respect to the Credit Agreement,
(iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv)
take any other action with respect to the Credit Agreement in accordance
with past practice or in the ordinary course of business.
Section 6.2 Amendment of Certificate of Incorporation and By-Laws
of the Company. At or prior to the Closing and subject to the Stockholder
Approval, the Company shall cause the Company Charter Amendment, the Series
A Certificate of Designations and the Series B Certificate of Designations
to be filed with the Secretary of State of Delaware and shall cause the
Restated Company By-laws to become effective. The Company shall use its
reasonable best efforts to ensure that the Restated Company By-Laws will
not be inconsistent, at any time, with any of the terms and provisions
contained in the Restated Governance Agreement for so long as such
agreement is in effect.
Section 6.3 Certain Payments.
(a) The Company shall, on the Closing Date, pay to each of the
Investors the amount set forth opposite each Investor's name on Schedule
6.3(a) hereto, the aggregate amount of which shall equal $907,705 for all
of the Investors, against receipt from such Investor of the Purchase Price
payable by such Investor pursuant to Section 2.2(b) hereof, which payment,
unless determined after the date hereof by an applicable taxing authority
or court of competent jurisdiction, the parties hereto shall treat for U.S.
federal income tax purposes as an adjustment to the Purchase Price payable
by such Investor.
(b) Upon the execution of this Agreement, the Company shall pay
(without reduction for any withholding tax) to the Investors an aggregate
amount equal to 50% of all reasonable, documented out-of-pocket legal,
travel and accounting expenses incurred in connection with the transactions
contemplated by this Agreement by the Investors through the date hereof.
Upon the earlier to occur of (x) the Closing, or (y) two (2) business days
following termination of this Agreement, the Company shall pay (without
reduction for any withholding tax) to the Investors an aggregate amount
equal to (A) 50% of all reasonable, documented out-of-pocket legal, travel
and accounting expenses incurred by the Investors on or prior to the date
hereof in connection with the transactions contemplated by this Agreement
plus (B) all reasonable, documented out-of-pocket legal, travel and
accounting expenses (including, without limitation, filing fees incurred
with respect to any filing made under the HSR Act by the Investors)
incurred by the Investors in connection with the transactions contemplated
by this Agreement after the date hereof and on or prior to the earlier to
occur of (1) the Closing Date or (2) the date of the termination of this
Agreement (collectively, the amounts referred to in the first two sentences
of this Section 6.3(b) are referred to as the "Expenses"); provided,
however, that in no event shall the aggregate amount of Expenses payable
pursuant to this Section 6.3(b) exceed $500,000 and provided, further, that
in the event that the Company terminates this Agreement pursuant to Section
7.1(c)(ii) as a result of a breach or a failure to perform by any of the
Investors of this Agreement, the term "Expenses" shall not include any
expenses incurred by the Investors after the date of this Agreement. The
amounts payable by the Company to the Investors pursuant to this Section
6.3(b) shall be allocable among the Investors in proportion to the amounts
set forth opposite each Investors' name on Schedule 6.3(a) hereto.
Section 6.4 Availability of Common Stock. From and after the
Closing, the Company shall at all times authorize, reserve and keep
available out of its authorized but unissued Common Stock, for the purpose
of enabling the conversion of the Shares, the full number of shares of
Common Stock then issuable upon the conversion of the Shares. The Company
will, from time to time, in accordance with the laws of the State of
Delaware, use its reasonable efforts to increase the authorized amount of
Common Stock if at any time the number of shares of Common Stock remaining
unissued and available for issuance shall be insufficient to permit
conversion of the Shares.
Section 6.5 Proxy Statement; Stockholder Approval.
(a) The Company shall, in accordance with applicable law and its
Certificate of Incorporation and By-Laws:
(i) duly call, give notice of, convene and hold a special
meeting of its stockholders (the "Special Meeting") as soon as practicable
following the mailing of the Proxy Statement (as defined below) for the
purpose of obtaining the Stockholder Approval;
(ii) prepare a form of proxy statement to be mailed to the
stockholders of the Company in connection with the Special Meeting (the
"Proxy Statement") as soon as practicable after the date hereof (provided
that the Investors and their counsel shall be given reasonable opportunity
to review and comment on the preliminary proxy statement, any amendments
thereto and related communications with stockholders prior to filing with
the SEC and provided further that the Investors shall have the right to
consent to any descriptions of or references to (i) the Investors or any of
their Affiliates, and (ii) the Series A Certificate of Designations, the
Series B Certificate of Designations and the Related Agreements and the
transactions contemplated thereby in the Proxy Statement or such
communications, which consent shall not be unreasonably withheld or
delayed) and use its reasonable best efforts (x) (1) to respond as promptly
as practicable to any comments made by the SEC with respect to the Proxy
Statement and (2) to promptly supply the Investors with copies of all
correspondence between the Company or any of its representatives, on the
one hand, and the SEC or its staff, on the other hand, with respect to the
Proxy Statement, and (y) to cause the definitive Proxy Statement to be
mailed to its stockholders at the earliest practicable date following the
clearance of the Proxy Statement by the SEC and, if necessary, after the
Proxy Statement shall have been so mailed, promptly circulate amended,
supplemental or supplemented proxy material, and, if required in connection
therewith, resolicit proxies;
(iii) except to the extent the Board of Directors determines
in good faith, after consultation with outside counsel, that contrary
action is required by such Board of Directors' fiduciary duties under
applicable law, recommend, without qualification, that the stockholders of
the Company vote to adopt and approve (x) the issuance of the Shares and
the shares of Common Stock issuable upon conversion of the Shares, (y) the
Company Charter Amendment and (z) the adoption of the Hexcel Corporation
2003 Incentive Stock Plan and amendments to certain of the Company's
existing equity incentive plans, substantially on terms set forth in
Exhibit J hereto, and include in the Proxy Statement such unqualified
recommendations and take all lawful action to solicit such approvals and
acceptances.
(b) The Company will advise the Investors, promptly after it
receives notice thereof, of the time when any supplement or amendment has
been filed or of any request by the SEC for an amendment of or supplement
to the Proxy Statement or comments thereon and responses thereto or
requests by the SEC for additional information. If at any time the Company
or the Investors, respectively, discover any information relating to the
Company or the Investors, or any of their respective affiliates, officers
or directors, that should be set forth in an amendment or supplement to the
Proxy Statement so that the document will not include any misstatement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, then the party that discovers any misleading
information shall promptly notify the other parties hereto and an
appropriate amendment or supplement describing the information shall be
promptly filed with the SEC and, to the extent required by law or
regulation, disseminated to the Company's stockholders.
(c) The Company shall use reasonable efforts to ensure that the
Proxy Statement (including without limitation any SEC Reports incorporated
by reference therein) shall comply in all material respects with all
applicable federal or other securities laws, except that the Company shall
have no obligation as to information provided by any of the Investors.
(d) At any meeting of stockholders of the Company at which the
transactions contemplated by this agreement are submitted to a vote of
stockholders, the Investors shall vote, or cause to be voted, all of the
shares of Common Stock beneficially owned by the LXH Investors in
accordance with the recommendations set forth in Section 6.5(a)(iii);
provided, however, that the Investors' obligation pursuant to this Section
6.5(d) shall be subject to the satisfaction of the following conditions as
of the date of each stockholder meeting: (i) the Board of Directors shall
not have withdrawn or modified in an adverse manner its recommendation of
the transactions contemplated by this Agreement, (ii) the Company shall not
be in a material breach of its obligations under this Agreement, (iii)
there shall not have occurred a Material Adverse Effect since June 30,
2002, (iv) the Company shall have received an executed commitment letter or
entered into definitive agreements with respect to the Senior Debt
Refinancing on terms no less favorable to the Company than those set forth
on Exhibit G hereto and such commitment letter or definitive agreements
shall not have been withdrawn, waived, modified, terminated or otherwise
altered in a manner adverse to the Company at any time prior to the Special
Meeting or any adjournments thereof, and (v) the Fairness Opinions shall
not have been withdrawn or materially adversely modified by Xxxxxxxx Xxxxx.
Except as otherwise contemplated by the Ciba Pledge Agreements, the
Investors shall cause the LXH Investors to not transfer, pledge,
hypothecate, sell or otherwise dispose of, or encumber, grant any proxy or
power of attorney over, any of the shares of Common Stock held by them, or
deposit any of their shares of Common Stock into a voting trust or enter
into a voting agreement, understanding or arrangement with respect to any
of such shares of Common Stock at any time prior to the Special Meeting and
any adjournments thereof.
Section 6.6 No Solicitation.
(a) Except as consented to by the Investors and except to satisfy
the condition set forth in Section 5.1(g) of this Agreement, the Company
shall not, and shall cause its Subsidiaries not to, and shall use its
reasonable best efforts to cause its officers, directors, employees,
financial advisors, consultants, attorneys, accountants, and other agents
not to, directly or indirectly, solicit, initiate, encourage or facilitate
or take any action to solicit, initiate, encourage or facilitate the
submission or making of any Alternate Proposal or any inquiry with respect
thereto or engage in discussions or negotiations with any Person with
respect thereto, or, in connection with any Alternate Proposal or potential
Alternate Proposal, disclose any nonpublic information relating to it or
its Subsidiaries or afford access to the properties, books or records of it
or its Subsidiaries to any Person that has made, or, to such party's
knowledge, is considering making, any Alternate Proposal; provided,
however, in the event that the Company shall receive an Alternate Proposal
that could reasonably be expected to result in a Superior Proposal that was
not solicited by it after the date hereof and which did not otherwise
result from a breach of this Section 6.6, then (i) the Company or its
representatives may make such inquiries or conduct such discussions with
respect to such Alternate Proposal as the Board of Directors, after
consultation with outside legal counsel, may deem necessary to inform
itself for the purpose of exercising its fiduciary duties and (ii) if the
Board of Directors of the Company by a majority vote determines in good
faith (after receiving advice of a financial adviser of nationally
recognized reputation) that such Alternate Proposal is reasonably likely to
result in a Superior Proposal, the Company and its representatives may
conduct such additional discussions or provide such information as the
Board of Directors may determine, but only if, (i) prior to such additional
discussions or such provision of information the Board of Directors by a
majority vote shall have determined in good faith, after consultation with
outside legal counsel, that the failure to take such action would
reasonably be expected to constitute a breach by it of its fiduciary duties
to its stockholders under applicable law and (ii) prior to providing any
such information, the Company shall have received from such Person an
executed agreement protecting the confidentiality of the information to be
provided.
(b) Nothing contained in this Agreement shall prevent the Board
of Directors from complying with Rule 14e-2 under the Exchange Act with
regard to an Alternate Proposal.
(c) Upon receiving any unsolicited Alternate Proposal (or any
amendment, supplement or change to any previously submitted Alternate
Proposal) or any inquiry that could reasonably be expected to lead to an
Alternate Proposal, the Company shall promptly (and in no event later than
two business days after receipt of any Alternate Proposal or amendment,
supplement or change thereto) notify the Investors of the receipt of such
Alternate Proposal or amendment, supplement or change to any previously
received Alternate Proposal or any inquiry that could reasonably be
expected to lead to an Alternate Proposal and the identity of the Person
making such proposal or submitting such amendment, supplement or change and
the material terms and conditions of such Alternate Proposal or any inquiry
that could reasonably be expected to lead to an Alternate Proposal.
(d) Except as set forth in this Section 6.6(d), the Board of
Directors shall not withdraw its recommendation of the transactions
contemplated by this Agreement or approve or recommend, or cause the
Company to enter into any agreement with respect to, any Alternate
Proposal. Notwithstanding the foregoing, if the Board of Directors by a
majority vote determines in good faith, after consultation with outside
legal counsel, that such withdrawal of recommendation or approval or
recommendation of a Superior Proposal or entering into an agreement with
respect to a Superior Proposal may reasonably be expected to be required to
satisfy its fiduciary duties, the Board of Directors may withdraw its
recommendation of the transactions contemplated hereby or approve or
recommend a Superior Proposal, or cause the Company to enter into an
agreement with respect to a Superior Proposal, but in each case only (i)
after providing written notice to the Investors (a "Notice of Superior
Proposal") advising the Investors that the Board of Directors has received
a Superior Proposal, specifying the material terms and conditions of such
Superior Proposal and identifying such Person making such Superior Proposal
and (ii) if the Investors do not, within five business days of the
Investors' receipt of the Notice of Superior Proposal, make an offer which
the Board of Directors by a majority vote determines in good faith (based
on the advice of a financial advisor of nationally recognized reputation)
to be as favorable to the Company's stockholders as such Superior Proposal;
provided, however, the Company shall not be entitled to withdraw its
recommendation of the transactions contemplated hereby or enter into any
agreement with respect to a Superior Proposal unless this Agreement has
been or concurrently is terminated by its terms pursuant to Section 7.1.
(e) For purposes of this Agreement, "Alternate Proposal" means
any offer or proposal for, or any indication of interest in, any (i) direct
or indirect acquisition or purchase of a business or assets that constitute
20% or more of the net revenues, net income or the assets of the Company
and its Subsidiaries, taken as a whole, (ii) direct or indirect acquisition
or purchase of 20% or more of any class of equity securities of the
Company, (iii) tender offer or exchange offer that if consummated would
result in any person beneficially owning 20% or more of any class of equity
securities of the Company, or (iv) merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar
transaction involving the Company, other than the transactions contemplated
by this Agreement and the Berkshire/Greenbriar Purchase Agreement.
(f) For purposes of this Agreement, "Superior Proposal" means any
bona fide Alternate Proposal, which does not contain any due diligence
condition, on terms that the Board of Directors of the Company determines
in its good faith judgment (after consultation with a financial advisor of
nationally recognized reputation and outside counsel) to be more favorable
from a financial point of view to the Company's stockholders than the
transactions contemplated by this Agreement, taking into account any
changes to the transactions contemplated by this Agreement that have been
proposed by the Investors in response to such proposal.
(g) Nothing contained in this Section 6.6 shall be deemed to be a
waiver of any party's rights or obligations under the Xxxxxxx Governance
Agreement.
Section 6.7 HSR Act; Other Filings. Each of the Investors and the
Company shall cooperate in making required filings under the HSR Act and
any foreign governmental and regulatory filings, notices and approvals
required to be made or obtained as contemplated by Section 5.1(e) hereof.
Section 6.8 Consents; Approvals. The Company shall use its
commercially reasonable efforts to obtain, as promptly as practicable, all
consents, waivers, exemptions, approvals, authorizations or orders
(collectively, "Consents") (including, without limitation (i) all Consents
required to avoid any breach, violation, default, encumbrance or right of
termination, modification, cancellation, prepayment, suspension,
limitation, revocation or acceleration of any material agreement or
instrument to which the Company is a party or its properties or assets are
bound, and (ii) all United States and foreign governmental and regulatory
approvals), required in connection with the consummation of the
transactions contemplated by this Agreement and the Related Agreements, in
each case as promptly as practicable, except where the failure to obtain
such Consents, individually or in the aggregate, has not had and would not
be reasonably expected to have a Material Adverse Effect.
Section 6.9 Debt Refinancing. The Company shall use its
reasonable best efforts to consummate the Senior Debt Refinancing on
substantially the terms set forth in Exhibit G hereto.
Section 6.10 Listing. The Company shall use its reasonable best
efforts to continue to have its Common Stock listed on the NYSE and PCX or
another national securities exchange for so long as the Investors own any
Shares.
Section 6.11 Cooperation. Each of the Investors, on the one hand,
and the Company, on the other, agrees to use commercially reasonable
efforts to cause, or not to impede, to the extent that such party has
control or influence over such matters, satisfaction of the conditions to
the other party's obligation to consummate the transactions contemplated by
this Agreement set forth in Section 5.2 or 5.3, as applicable.
Section 6.12 Execution and Delivery of Related Agreements. Prior
to or simultaneously with the Closing, (i) the Company shall execute and
deliver to the Investors the Related Agreements (in each case upon
satisfaction or waiver of the other conditions set forth in Sections 5.1
and 5.3 hereto), and (ii) each of the Investors shall execute and deliver
to the Company, and shall cause the LXH Investors to execute and deliver to
the Company, the Related Agreements (in each case upon satisfaction or
waiver of the other conditions set forth in Sections 5.1 and 5.2 hereto).
Section 6.13 Use of Proceeds. The Company shall use the proceeds
from the sale of the Shares to repay indebtedness of the Company and for
general corporate purposes.
Section 6.14 Investors' Access to Premises; Notices of
Developments.
(a) From the date of this Agreement until the Closing Date, the
Company will permit the Investors and their respective representatives to
have full access (at reasonable times and upon reasonable notice) to all
officers of the Company and its Subsidiaries and to all premises,
properties, books, records (including tax records), contracts, financial
and operating data and information and documents pertaining to the Company
and its Subsidiaries and make copies of such books, records, contracts,
data, information and documents as any Investor or their respective
representatives may reasonably request.
(b) From the date of the Agreement until the Closing Date, the
Company will give the Investors prompt written notice upon becoming aware
of any development materially adversely affecting the assets, liabilities,
business, financial condition or operations of the Company or its
Subsidiaries, or any event or circumstance that could reasonably be
expected to result in a breach of, or inaccuracy in, any of the Company's
representations and warranties in this Agreement; provided, however, that
no such disclosure will be deemed to prevent or cure any such breach of, or
inaccuracy in, amend or supplement any Company Disclosure Schedule to, or
otherwise disclose any exception to, any of the representations and
warranties set forth in this Agreement.
Section 6.15 IRS Forms. On the date hereof, each of the Investors
(other than GS 2000 Offshore and GS 0000 Xxxxxxx) shall provide the
Company, in the manner prescribed by applicable law, validly completed and
executed Internal Revenue Service Forms W-9, and as soon as reasonably
practicable after the date hereof, as reasonably determined by each of GS
2000 Offshore and GS 2000 Germany, GS 2000 Offshore and GS 0000 Xxxxxxx
shall provide the Company (or cause to be provided to the Company), in the
manner prescribed by applicable law, validly completed and executed
Internal Revenue Service Forms W-8BEN or other applicable W-8.
ARTICLE VII
TERMINATION
-----------
Section 7.1 Termination. Notwithstanding anything contained
herein to the contrary, this Agreement may be terminated at any time prior
to the Closing Date:
(a) by the mutual written consent of each of the Investors and
the Company;
(b) by the Investors or the Company:
(i) if the Closing has not occurred on or before May 30,
2003 (the "Expiration Date") and this Agreement has not previously been
terminated; provided, that the right to terminate the Agreement pursuant to
this Section 7.1(b)(i) shall not be available to any party whose failure to
fulfill any obligation under this Agreement was the cause of, or resulted
in, the failure of the Closing to occur on or before such date; or
(ii) if any Governmental Entity shall have issued an order,
judgment, decree or ruling or taken any other action, in each case
permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby and such order, judgment, decree, ruling
or other action shall have become final and non-appealable; provided, that
the right to terminate this Agreement pursuant to this Section 7.1(b)(ii)
shall not be available to any party whose failure to fulfill any obligation
under this Agreement was the cause of, or resulted in the issuance of such
order, judgment, decree or ruling; or
(iii) if, at the Special Meeting, the Stockholder Approval
is not obtained, provided, that the right to terminate the Agreement
pursuant to this Section 7.1(b)(iii) shall not be available to any party
whose failure to fulfill any obligation under this Agreement was the cause
of, or resulted in, the failure to obtain Stockholder Approval;
(c) by the Company:
(i) if the Company receives a Superior Proposal and the
Board of Directors has complied with the provisions of Section 6.6(a), (c)
and (d), including the notice provisions therein; or
(ii) if (A) the representations and warranties of any of the
Investors set forth in this Agreement (other than those set forth in
Sections 4.1, 4.2 and 4.8) shall not be true and correct in all material
respects on and as of the date of this Agreement and on and as of the
Closing Date as if made on such date (except to the extent expressly made
as of an earlier date, in which case as of such date), (B) the
representations and warranties set forth in Sections 4.1, 4.2, and 4.8
shall not be true and correct in all respects on each such date (except to
the extent expressly made as of an earlier date, in which case as of such
date), or (C) any of the Investors shall have breached or failed in any
material respect to perform or comply with any material obligation,
agreement or covenant required by this Agreement to be performed or
complied with by it, which inaccuracy or breach is incapable of being cured
prior to the Expiration Date, except, in the case of the inaccuracy of any
representation or warranty, for changes specifically permitted by this
Agreement.
(d) by the Investors:
(i) if the Board of Directors or any committee thereof shall
have withdrawn or modified, in a manner adverse to the Investors, its
approval or recommendation of any of the transactions contemplated by this
Agreement; or
(ii) if (A) the representations and warranties of the
Company set forth in this Agreement shall not be true and correct on and as
of the date of this Agreement and on and as of the date of such
determination as if made on such date (except to the extent expressly made
as of an earlier date, in which case as of such earlier date), except, (i)
in the case of any such representations and warranties (other than those
set forth in the second sentence of Section 3.1(b), Sections 3.2-3.6,
Sections 3.11-3.16 and Section 3.21) where the failure to be true and
correct (without giving effect to any limitation as to "materiality" or
"Material Adverse Effect" set forth therein) would not have a Material
Adverse Effect and (ii) in the case of the representations and warranties
set forth in the second sentence of Section 3.1(b), Sections 3.2-3.6,
Sections 3.11-3.16 and Section 3.21 hereof, the representations and
warranties shall not be true and correct in all material respects on each
such date (except to the extent such statements in representations and
warranties are qualified by "materiality" or "Material Adverse Effect",
which shall statements be true and correct in all respects on each such
date), or (B) the Company shall have breached or failed in any material
respect to perform or comply with any material obligation, agreement or
covenant required by the Agreement to be performed or complied with by it,
which inaccuracy or breach cannot be cured or has not been cured prior to
the Expiration Date, except, in the case of the failure of any
representation or warranty, for changes specifically permitted by this
Agreement; or
(iii) if any change, event or development or series of
changes, events or developments which individually or in the aggregate has
had a Material Adverse Effect subsequent to the date of this Agreement and
which Material Adverse Effect is incapable of being cured prior to the
Expiration Date, provided, that a party may not terminate the Agreement
pursuant to this Section 7.1(d)(iii) shall not be available to any party
whose failure to fulfill any obligation under this Agreement has been the
cause of, or resulted in the change, event or development.
Section 7.2 Effect of Termination. Termination pursuant to
Section 7.1 shall terminate all obligations and liabilities of the parties
hereto under this Agreement except for (i) liabilities for breach by any
party under this Agreement and (ii) obligations or liabilities arising
under Sections 6.3, and 7.2 and Articles VIII and IX.
ARTICLE VIII
INDEMNIFICATION
---------------
Section 8.1 Survival of Representations and Warranties. The
representations and warranties of the parties hereto contained in this
Agreement shall expire twelve months after the Closing Date, except that
the representations and warranties set forth in Sections 3.1(a), 3.2 and
3.3 shall survive until 60 days after the expiration of the applicable
statute of limitations (including any extensions thereof) and the
representations and warranties set forth in Section 3.7 shall survive until
eighteen months after the Closing Date. After the expiration of such
periods, any claim by a party hereto based upon any such representation or
warranty shall be of no further force and effect, except to the extent a
party has asserted a claim in accordance with this Article VIII for breach
of any such representation or warranty prior to the expiration of such
period, in which event any representation or warranty to which such claim
relates shall survive with respect to such claim until such claim is
resolved as provided in this Article VIII. The covenants and agreements of
the parties hereto contained in this Agreement shall survive the Closing
until performed in accordance with their terms.
Section 8.2 Indemnification.
(a) The Company shall indemnify, defend and hold harmless the
Investors, their Affiliates, and their respective officers, directors,
partners, members, employees, agents, representatives, successors and
assigns (each an "Investor Indemnified Person") from and against all Losses
incurred or suffered by an Investor Indemnified Person arising from,
relating to or as a result of (i) the breach of any of the representations
or warranties made by the Company in this Agreement (which breach shall be
determined without regard to any materiality or Material Adverse Effect
qualifications contained in the representation and warranty giving rise to
such claim for indemnity), (ii) the breach of any covenant, obligation or
agreement made by the Company in this Agreement or (iii) any actual or
threatened Litigation against such Investor Indemnified Person by any
Person (other than an Investor Indemnified Person) in connection with (A)
the transactions contemplated hereby or by the Related Agreements, (B) the
negotiation, execution, delivery and performance of this Agreement or the
Related Agreements or (C) any actions taken (including, without limitation,
the voting of, or failure to vote of, shares of the Company's common stock
as contemplated by Section 6.5(d) hereof) by any Investor Indemnified
Person pursuant hereto or thereto or in connection with the transactions
contemplated hereby or thereby (whether or not the transactions
contemplated hereby or thereby are consummated); provided, however, that
the Company shall not have any obligation to indemnify the Investor
Indemnified Persons pursuant to this Section 8.2(a)(iii) to the extent such
suit, action, claim or proceeding arises from a breach of this Agreement by
any Investor Indemnified Person or a failure of any representation or
warranty set forth in Article IV hereof to be true and correct and such
breach or failure of a representation or warranty to be true and correct
results in any condition contained in Sections 5.1 or 5.3 hereof being
incapable of being satisfied prior to May 30, 2003.
(b) Each Investor shall, solely on behalf of itself, separately
and not jointly, indemnify, defend and hold harmless the Company, its
Affiliates, and their respective officers, directors, partners, members,
employees, agents, representatives, successors and assigns (each a "Company
Indemnified Person") from and against all Losses incurred or suffered by a
Company Indemnified Person arising from, relating to, or as a result of (i)
the breach of any of the representations or warranties made by such
Investor in this Agreement or (ii) the breach of any covenant, obligation
or agreement made by such Investor in this Agreement.
(c) No claim may be made against the Company for indemnification
with respect to breaches of representations and warranties pursuant to
Section 8.2(a)(i) above with respect to any Losses unless the aggregate
amount of Losses incurred by the Investor Indemnified Persons thereunder
exceeds $2,000,000, and the Company shall then only be liable for the
amount of such Losses which exceed $2,000,000. The maximum amount
recoverable under Section 8.2(a)(i) by all Investor Indemnified Persons, in
the aggregate, shall be $10,000,000; provided, however, the maximum amount
recoverable under Section 8.2(a)(i) with respect to a breach of the
Company's representation and warranty contained in Section 3.4 shall be an
amount equal to the Purchase Price. No claim may be made against the
Investors for indemnification with respect to breaches of representations
and warranties pursuant to Section 8.2(b)(i) above with respect to any
Losses unless the aggregate amount of Losses incurred by the Company
Indemnified Persons thereunder exceeds $2,000,000, and the Investors shall
then only be liable for the amount of such Losses which exceed $2,000,000.
The maximum amount recoverable under Section 8.2(b)(i) by all Company
Indemnified Persons, in the aggregate, shall be $10,000,000.
(d) In no case shall any payment be made in the case of an
indemnification claim under Section 8.2(a)(i) or 8.2(a)(ii) until a Loss
occurs. No Person shall have any liability to any Investor Indemnified
Person under Section 8.2(a)(i) for any breach of a representation or
warranty to the extent that a claim for indemnification is based upon facts
of which any Investor Indemnified Person had knowledge on or prior to the
Closing Date, unless such claim also relies upon a materially adverse
occurrence or development that occurs after the Closing Date. For purposes
of this Section 8.2(d), (i) the Investors shall only be deemed to have
knowledge of a fact if any of the Persons listed on Schedule 8.2(d) has
knowledge of the particular fact and (ii) such individual shall be deemed
to have knowledge only to the extent of his or her actual knowledge of such
fact and only to the extent of his or her awareness that such fact
constitutes a breach of such representation or warranty.
Section 8.3 Procedure for Indemnification.
(a) If an Investor Indemnified Person or a Company Indemnified
Person (such Person being referred to as the "Indemnitee") shall receive
notice or otherwise learn of the assertion by a Person who is not a party
to this Agreement of any claim or of the commencement by any such Person of
any action (a "Claim") with respect to which the other party (the
"Indemnifying Party") may be obligated to provide indemnification, such
Indemnitee shall give such Indemnifying Party written notice thereof
promptly after becoming aware of such Claim; provided, that the failure of
any Indemnitee to give notice as provided in this Section 8.3 shall not
relieve the applicable Indemnifying Party of its obligations under this
Article VIII, except to the extent that such Indemnifying Party is
materially prejudiced by such failure to give notice; provided, further,
that the applicable Indemnifying Party shall have no obligations under
Section 8.2(a)(i) or Section 8.2(b)(i), as applicable, unless such written
notice is received by the Indemnifying Party within the survival periods
set forth in Section 8.1. Such notice shall describe the Claim in
reasonable detail, and shall indicate the amount (estimated if necessary)
of the Loss that has been or may be sustained by or is claimed against such
Indemnitee.
(b) An Indemnifying Party may elect to compromise, settle or
defend, at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel, any Claim; provided, however, that the Indemnifying
Party shall not compromise, settle or defend a Claim without the consent of
the Indemnitee (which consent shall not be unreasonably withheld). If an
Indemnifying Party elects to compromise, settle or defend a Claim, it
shall, within 30 days of the receipt of notice from an Indemnitee pursuant
to Section 8.3(a) (or sooner, if the nature of such Claim so requires),
notify the applicable Indemnitee of its intent to do so, and such
Indemnitee shall cooperate in a commercially reasonable manner in the
compromise or settlement of, or defense against, such Claim. After notice
from an Indemnifying Party to an Indemnitee of its election to assume the
defense of a Claim, the Indemnitee shall have the right to participate in
the defense thereof, at its own expense, and such Indemnifying Party shall
not be liable to such Indemnitee under this Article VIII for any legal or
other expenses subsequently incurred by such Indemnitee in connection with
the defense thereof (except expenses approved in advance by the
Indemnitee); provided, that such Indemnitee shall have the right to employ
one separate counsel reasonably satisfactory to the Indemnifying Party to
represent such Indemnitee if (i) in the reasonable judgment of the
Indemnitee, there are legal defenses available to such Indemnitee that are
different from or additional to those available to the Indemnifying Party,
(ii) the Indemnifying Party shall authorize in writing the Indemnitee to
retain a single, separate counsel at the Indemnifying Party's expense or
(iii) the defendants in any such Claim include both the Indemnifying Party
and the Indemnitee and, in such Indemnitee's reasonable judgment, a
conflict of interest between such Indemnitee and such Indemnifying Party
exists in respect of such Claim, and only in the events listed in clauses
(i) through (iii) of this paragraph (b) shall the reasonable fees and
expenses of such separate counsel be paid by such Indemnifying Party. If an
Indemnifying Party elects not to compromise, settle or defend against a
Claim, or fails to notify an Indemnitee of its election as provided in this
Section 8.3 within 30 days of notice from the Indemnitee pursuant to
Section 8.3(a), such Indemnitee may compromise, settle or defend such Claim
at the expense of such Indemnifying Party.
(c) If an Indemnifying Party chooses to defend any claim, the
applicable Indemnitee shall make available to such Indemnifying Party any
personnel or any books, records or other documents within its control that
are reasonably necessary or appropriate for such defense.
(d) If the aggregate amount of any Loss shall, at any time
subsequent to payment pursuant to this Agreement, be reduced by recovery,
settlement or otherwise, the amount of such reduction, net of any expenses
incurred in connection therewith or additional Losses incurred, shall
promptly be repaid by the applicable Indemnitee to the applicable
Indemnifying Party.
(e) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Claim, such Indemnifying Party shall be
subrogated to and shall stand in the place of such Indemnitee as to any
events or circumstances in respect of which such Indemnitee may have any
right or claim relating to such Claim. Such Indemnitee shall cooperate with
such Indemnifying Party in a reasonable manner, and, at the cost and
expense of such Indemnifying Party, in prosecuting any subrogated right or
claim.
Section 8.4 Sole Remedy. Except in the case of fraud, the rights
to indemnification provided for in this Article VIII for a breach of
representations or warranties by the Investors (in the case of
indemnification pursuant to Section 8.2(b)(i)) or the Company (in the case
of indemnification pursuant to Section 8.2(a)(i)) shall constitute the sole
post-closing remedy of the Company and the Investors, respectively, for
such breach, and the Company and the Investors shall have no other
liability or damages to the other party resulting from any such breach.
ARTICLE IX
MISCELLANEOUS
-------------
Section 9.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
(WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 9.2 Jurisdiction; Forum; Service of Process; Waiver
of Jury Trial. With respect to any suit, action or proceeding
("Proceeding") arising out of or relating to this Agreement each of the
Investors and the Company hereby irrevocably:
(a) submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York or the Court of
Chancery located in the State of Delaware, County of Newcastle (the
"Selected Courts") and waives any objection to venue being laid in the
Selected Courts whether based on the grounds of forum non conveniens or
otherwise and hereby agrees not to commence any such Proceeding other than
before one of the Selected Courts; provided, however, that a party may
commence any Proceeding in a court other than a Selected Court solely for
the purpose of enforcing an order or judgment issued by one of the Selected
Courts;
(b) consents to service of process in any Proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid,
or by recognized international express carrier or delivery service, to the
Company or the Investors at their respective addresses referred to in
Section 9.5 hereof; provided, however, that nothing herein shall affect the
right of any party hereto to serve process in any other manner permitted by
law; and
(C) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE
WAIVED, WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY ACTION
ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND AGREES
THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS
WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT
AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS WILL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
Section 9.3 Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors by operation of law and permitted assigns of the
parties hereto. No assignment of this Agreement may be made by any party at
any time, whether or not by operation of law, without each of the other
parties' prior written consent.
Section 9.4 Entire Agreement; Amendment. Other than as provided
in this Section 9.4, this Agreement, the Related Agreements, the Goldman
Governance Agreement, the Goldman Registration Rights Agreement, the
Agreement, dated October 11, 2000, by and among the Company and the LXH
Investors (which, for the avoidance of doubt, is the agreement entered into
by the Company and the LXH Investors which contains representations and
warranties of the Company and the LXH Investors), and the Confidentiality
Agreement, dated October 23, 2002, between the Company and GSCP Capital
Partners 2000, L.P., constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof. Except as
expressly provided herein, neither this Agreement nor any term hereof may
be amended, waived, discharged or terminated other than by a written
instrument signed by the Company and by each of the Investors. No waiver of
any of the provisions of this Agreement will be deemed or will constitute a
waiver of any other provision hereof (whether or not similar), nor will
such waiver constitute a continuing waiver unless otherwise expressly
provided.
Section 9.5 Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to
such party at the address set forth below or such other address as may
hereafter be designated in writing by such party to the other parties:
(a) if to the Company, to:
Hexcel Corporation
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Attention: Xxx X. Xxxxxxxx, Esq.
with a copy to each of the following (which shall not
constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Coco, Esq. and
Xxxxxx X. Xxxxxxxxx, Esq.
(b) if to the Investors, to:
GS Capital Partners 2000 L.P.
GS Capital Partners 2000 Offshore, L.P.
GS Capital Partners 2000 Employee Fund, L.P.
GS Capital Partners 2000 GMBH & Co. Beteiligungs XX
Xxxxx Xxxxxx Xxxx 0000, X.X.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx and Xxx Xxxxx, Esq.
with a copy to (which shall not constitute notice):
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
All such notices, requests, consents and other communications shall be
deemed to have been given or made if and when delivered personally or by
overnight courier to the parties at the above addresses or sent by
electronic transmission, with confirmation received, to the telecopy
numbers specified above (or at such other address or telecopy number for a
party as shall be specified by like notice).
Section 9.6 Certain Definitions. As used herein, the following
terms shall have the meanings set forth below:
(a) "Affiliate" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) "beneficially owns" and "beneficial ownership" shall have the
meanings as used in Rules 13d-3 and 13d-5 promulgated under the Exchange
Act, except that for the purposes of Article IV of this Agreement, such
meanings shall include the right to acquire securities, whether or not such
right is exercisable immediately);
(c) "Berkshire/Greenbriar Investors" shall mean Greenbriar Equity
Fund, L.P., a Delaware limited partnership, Greenbriar Co-Investment
Partners, L.P., a Delaware limited partnership, Berkshire Fund V, Limited
Partnership, a Massachusetts limited partnership, Berkshire Fund VI,
Limited Partnership, a Massachusetts limited partnership, Berkshire Fund V
Investment Corp., Berkshire Fund VI Investment Corp. and Berkshire
Investors LLC, a Massachusetts limited liability company;
(d) "Berkshire/Greenbriar Purchase Agreement" shall mean the
Stock Purchase Agreement, dated December 18, 2002, by and among the Company
and the Berkshire/Greenbriar Investors;
(e) "Common Stock" shall mean the Company's common stock, par
value $0.01 per share;
(f) "Credit Agreement" shall mean the Second Amended and Restated
Credit Agreement, dated as of September 15, 1998, as amended, among the
Company, certain of its Subsidiaries, the lenders parties thereto,
Citibank, N.A. and Credit Suisse First Boston;
(g) "Environmental Laws" means any federal, state, foreign or
local statute, law, rule, regulation, ordinance, code or rule of common law
now in effect and in each case as amended, and any applicable judicial
interpretation thereof, including any legally binding judicial or
administrative order, consent decree or judgment, relating to the
environment, employee, health and safety or Hazardous Materials, including,
without limitation, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et seq.; the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. ss. 6901 et
seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. ss.
1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq.;
the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking Water Act,
42 U.S.C. xx.xx. 201 & 300f et seq.; the Oil Pollution Act of 1990, 33
U.S.C. ss. 2701 et seq.; the Emergency Planning and the Community
Right-to-Know Act of 1986, 42 U.S.C. ss. 11001 et seq.; the Hazardous
Material Transportation Act, 49 U.S.C. ss. 1801 et seq. and the
Occupational Safety and Health Act, 29 U.S.C. ss. 651 et seq.; and any
state and local or foreign counterparts or equivalents, in each case as
amended from time to time;
(h) "Governmental Entity" shall mean any national, foreign,
federal, state or local judicial, legislative, executive, administrative or
regulatory body or authority;
(i) "Hazardous Materials" means (i) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, polychlorinated biphenyls, and radon gas; and
(ii) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous substances", "restricted hazardous
wastes", "toxic substances" or "toxic pollutants" under any applicable
Environmental Law;
(j) "Knowledge" shall mean, with respect to the Company, the
knowledge of Xxxxx X. Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxxxx Xxxx, Xxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxx X.
Xxxxxxx;
(k) "Losses" shall mean each and all of the following items:
claims, losses, liabilities, obligations, payments, damages (actual or
punitive), charges, judgments, fines, penalties, amounts paid in
settlement, costs and expenses (including, without limitation, interest
which may be imposed in connection therewith, costs and expenses of
investigation, actions, suits, proceedings, demands, assessments and fees,
expenses and disbursements of counsel, consultants and other experts);
(l) "Material Adverse Effect" means any event which has had, has
or would reasonably be expected to have a material adverse effect on the
financial condition, results of operations or business of the Company and
its Subsidiaries, taken as a whole, other than (i) as a result of changes
in general economic or industry conditions or changes in applicable laws,
rules or regulations, (ii) as disclosed in Section 9.6(l)(ii) of the
Company Disclosure Schedule, or (iii) as a result of changes arising out of
the announcement of the transactions contemplated by this Agreement;
provided, however, that, for all purposes of this Agreement, any extension
or amendment by the Company of the Credit Agreement shall not be taken into
account in determining whether a "Material Adverse Effect" has occurred;
(m) "Person" shall mean any individual, firm, corporation,
limited liability company, partnership, company or other entity, and shall
include any successor (by merger or otherwise) of such entity;
(n) "Significant Subsidiaries" shall have the meaning ascribed
thereto in Rule 1-02 of Regulation S-X (17 CFR 210); and
(o) "Subsidiary" shall mean as to any Person, each corporation,
partnership or other entity of which shares of capital stock or other
equity interests having ordinary voting power (other than capital stock or
other equity interests having such power only by reason of the happening of
a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, directly or indirectly, or the management of which is otherwise
controlled, directly or indirectly, or both, by such Person.
Section 9.7 Withholding.
If any tax is required to be withheld by the Company under
Section 3406 of the Code and the treasury regulations thereunder on any
payment to GS 2000 Offshore or GS 0000 Xxxxxxx pursuant to Section 6.3 of
this Agreement, then the Company shall be entitled to reimbursement from
such Investor of any amounts required to be paid by the Company (or its
Affiliates), including any interest and penalties, as a result of the
failure of the Company to withhold or remit such tax; provided, however,
that no such reimbursement shall be required with respect to any such
payment by the Company made after the date of delivery of the applicable
Form W-8 in accordance with Section 6.15 of this Agreement.
Section 9.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which may be executed by only one of the
parties hereto, each of which shall be enforceable against the party
actually executing such counterpart, and all of which together shall
constitute one instrument.
Section 9.9 Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and
valid, but if any provision of this Agreement is held to be invalid or
unenforceable in any respect, such invalidity or unenforceability shall not
render invalid or unenforceable any other provision of this Agreement.
Section 9.10 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
Section 9.11 No Public Announcement. None of the Investors or the
Company shall make any press release, public announcement or filing with
any Governmental Entity concerning the transactions contemplated by this
Agreement, except as and to the extent that any such party shall be
obligated to make any such disclosure by this Agreement, by law or by the
NYSE and then (other than with respect to the amendment to Schedule 13D to
be filed by the Goldman Investors and the LXH Investors, provided that a
copy of such amendment has been provided to the Company prior to filing)
only after consultation with the other parties hereto regarding the basis
of such obligation and the content of such press release, public
announcement or filing or as the parties shall mutually agree. The parties
agree that the initial press release to be issued with respect to the
execution and delivery of this Agreement shall be in the form attached
hereto as Exhibit K.
Section 9.12 Further Actions. Subject to Section 6.6, at any time
or from time to time after the Closing, the Company and the Investors agree
to cooperate with each other, and at the request of the other parties, to
execute and deliver any further instruments or documents and to take all
such further action as the other parties may reasonably request in order to
evidence or effectuate the consummation of the transactions contemplated
hereby or by the Related Agreements and to otherwise carry out the intent
of the parties hereunder or thereunder.
Section 9.13 Enforcement of Agreement. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed in accordance with its specific terms
or was otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions and other equitable remedies to
prevent breaches of this Agreement and to enforce specifically the terms
and provisions hereof in any of the Selected Courts, this being in addition
to any other remedy to which they are entitled at law or in equity. Any
requirements for the securing or posting of any bond with respect to such
remedy are hereby waived by each of the parties hereto. Each party further
agrees that, in the event of any action for an injunction or other
equitable remedy in respect of such breach or enforcement of specific
performance, it will not assert the defense that a remedy at law would be
adequate.
IN WITNESS WHEREOF, each of the undersigned has caused the
foregoing Agreement to be executed under seal by one of its duly authorized
officers as of the date first above written.
HEXCEL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
GS CAPITAL PARTNERS 2000 L.P.
By: GS Advisors 2000, L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
By: GS Employee Funds 2000 G.P., L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG
By: Xxxxxxx, Sachs Management GP GmbH,
its general partner
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
STONE STREET FUND 2000, L.P.
By: Stone Street 2000, L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
