Exhibit 99.2
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE
RETIREMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT made this 31st day of December, 2008, to
be effective as of the 31st day of December, 2008, between Hexcel Corporation,
a Delaware corporation (the “Company”), and Xxxxx X. Xxxxxx (the “Executive”). This
amended and restated Agreement replaces the earlier version of the Agreement
dated July 30, 2001, as amended on December 31, 2007.
WHEREAS, the Executive is presently employed by the Company as
Chairman and Chief Executive Officer; and
WHEREAS, the Company is willing to provide the Executive with certain
benefits in the event of the retirement from or termination of the Executive’s
employment with the Company;
NOW, THEREFORE, in consideration of the continued employment of the
Executive by the Company and the benefits to be derived by the Executive
hereunder, the parties mutually agree as follows:
ARTICLE I
DEFINITIONS
The following terms when used in this Agreement shall have the
designated meaning, unless a different meaning is clearly required by the
context.
1.1 ACTUARIAL
EQUIVALENCE. Determinations hereunder of actuarial value, actuarial equivalence
or the like shall be made by the Company’s independent actuary, using the
mortality and other applicable actuarial assumptions specified, from time to
time, in the Hexcel Corporation Pension Plan (the “Pension Plan”) or any
successor plan thereto; PROVIDED that, in view of the termination of the
Pension Plan on April 1, 2007, the mortality table used for the purpose of
determining actuarial equivalence shall be the most recent table prescribed
from time to time by the Secretary of the Treasury pursuant to Section
430(h)(3) of the Code; and PROVIDED FURTHER, however, that for the purpose of
determining any lump sum amount under this Agreement, or the amount of
reduction to reflect the payment of a special benefit under Section 2.3,
actuarial equivalence shall be determined using an interest rate equal to 120%
of the immediate interest rate for the month in which benefits commence as
published by the Pension Benefit Guaranty Corporation for purposes of paying
lump sum benefits under plans with respect to which the PBGC acts as trustee.
1.2 AFFILIATE.
Any trade or business, whether or not incorporated, which at the time of
reference (i) controls, is controlled by or is under common control with the
Company within the meaning of section 414(b) or (c) of the Code, or (ii) is,
together with the Company, a member of an affiliated service group within the
meaning of section 414(m) of the Code.
1.3 BOARD.
The Board of Directors of the Company.
1.4 CAUSE.
Cause shall have the meaning set forth in the Employment Agreement.
1.5 CHANGE
IN CONTROL. Change in Control shall have the meaning set forth in the Employment
Agreement.
1.6 CODE.
The Internal Revenue Code of 1986, as amended.
1.7 COMPANY.
Hexcel Corporation, a Delaware corporation, and its successors.
1.8 CONTINUOUS
SERVICE. The number of full and partial calendar months of the Executive’s
period of continuous employment with the Company and its Affiliates. A transfer
between employment with the Company and an Affiliate or between Affiliates
shall not be deemed a termination of employment or otherwise interrupt the
Executive’s Continuous Service. Leaves of absence of not more than one year and
any period during which the Executive is entitled to receive disability
benefits from the Company (including medical and short-term disability benefits
preceding the commencement of long-term disability benefits under the Company’s
long-term disability plan) shall be taken into account as Continuous Service;
provided, however, that the Executive shall not accrue Continuous Service for
any periods on or after the payment or commencement of payment of any benefits
under this Agreement.
1.9 DISABILITY.
Disability shall have the meaning set forth in the Employment Agreement.
1.10 EMPLOYMENT
AGREEMENT. The Employment Agreement between the Executive and the Company
entered into as of July 30, 2001, as amended and restated effective as of
December 31, 2008.
1.11 GOOD
REASON. Good Reason shall have the meaning set forth in the Employment
Agreement.
1.12 NORMAL
RETIREMENT BENEFIT. The benefit defined in Section 2.2.1 hereof.
1.13 NORMAL
RETIREMENT DATE. The date on which the Executive attains age sixty-five (65).
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1.14 TERMINATION
OF EMPLOYMENT. References hereunder to the Executive’s termination of
employment, the date the Executive’s employment terminates and the like, shall,
except as specifically provided herein, refer to the Executive’s “separation
from service” as defined in Section 1.409A-1(h) of the Treasury Regulations (or
any successor provision).
ARTICLE II
RETIREMENT BENEFITS
2.1 IN GENERAL. The amount of
the Executive’s benefit shall be based on his Final Average Pay, Benefit
Percentage and Vesting Percentage; the benefit otherwise payable under this
Agreement’s basic benefit formula shall be reduced by the amount of the
Executive’s Qualified Pension Benefits. The following definitions shall apply
in making benefit calculations under this Agreement:
2.1.1 FINAL
AVERAGE PAY. The average monthly compensation of the Executive for the
highest-paid 36 months (or the Executive’s entire period of employment with the
Company and its Affiliates if such period is less than 36 months) of the
Executive’s final 60 months of Continuous Service. For this purpose (i) the
Executive’s “compensation” shall mean his base salary (without regard to any
salary deferral pursuant to sections 125 or 401(k) of the Code or any successor
provision) and all amounts earned (whether paid or payable) under all
management incentive or other bonus plans in which he participates and (ii) any
incentive pay or other bonus shall be deemed to have been earned ratably over
the period with respect to which it is earned.
2.1.2 BENEFIT
PERCENTAGE. With respect to each of the first 96 months of Continuous Service,
one half of one percent (1/2%); and with respect to each of the next 60 months
of Continuous Service, one sixth of one percent (1/6%) .
2.1.3 VESTING
PERCENTAGE. 100% if the Executive has completed at least 60 months of
Continuous Service; otherwise, 0%.
2.1.4 QUALIFIED
PENSION BENEFITS. (i) the vested contributions made by the Company to the
Hexcel Corporation 401(k) Plan or any successor plan thereto, and (ii) the
vested contributions made by the Company to the Hexcel Corporation 401(k)
Restoration Plan or any successor plan thereto (provided that with respect to
any successor plan, this shall only refer to vested contributions made as of
December 31, 2007), in each case, whether as a periodic payment, as a lump sum,
or otherwise. The aggregate of the Executive’s Qualified Pension Benefits shall
be expressed as a monthly amount in the form of an actuarially equivalent 50%
joint and survivor annuity with 120 months of guaranteed payments starting at
the date the Executive attains age 65; PROVIDED, HOWEVER, that notwithstanding
anything in Section 1.1 to the contrary, for purposes of determining the amount
of offset attributable to this Section 2.1.4, Company contributions (or
allocations, in the case of clause (ii) above) shall be deemed to earn interest
at an annual rate of 6%, compounded annually, from the date of such
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contribution (or allocation)
until the date it is actually paid to or in respect of the Executive.
2.2 PAYMENT OF BENEFITS.
Benefits shall be paid as follows:
2.2.1 NORMAL
RETIREMENT. Subject to Sections 2.2.7 and 2.2.10, and except as otherwise set
forth in Section 2.2.2 or 2.2.3, if the Executive’s employment terminates on or
after his Normal Retirement Date, the Company will promptly (in any event
within 90 days following the Executive’s termination) pay the Executive a cash
lump sum, the amount of which shall equal the actuarial present value of the “Normal
Retirement Benefit.” The Normal
Retirement Benefit shall be a monthly benefit starting on the first of the
month after the Executive’s employment terminates and ending with the payment
for the month in which his death occurs or, if later, after the payment of 120
such payments, with any such payments made after the death of the Executive to
be made (i) to the Executive’s designated beneficiary, if any or (ii) if there
is no designated beneficiary or the designated beneficiary dies before a total
of 120 payments have been made to the Executive and the designated beneficiary,
to the Executive’s estate, and shall be an amount equal to (A) the product of
his Final Average Pay, Benefit Percentage, and his Vesting Percentage, less (B)
his Qualified Pension Benefits.
2.2.2 TERMINATION
FOLLOWING CHANGE IN CONTROL. Subject to Sections 2.2.8, 2.2.9 and 2.2.10, upon
(i) termination by the Executive of his employment for Good Reason within two
years following a Change in Control, (ii) termination of the Executive’s
employment by the Company other than for Cause within two years following a
Change in Control or (iii) a termination of the Executive’s employment
described in Section 8(g)(ii) of the Employment Agreement (whether by the
Company or the Executive), the Company will pay the Executive, no later than
the next business day following the date of such termination, by wire transfer
to the Executive’s bank account, as designated by the Executive, a cash lump
sum, the amount of which shall equal the actuarial present value of the “Change
in Control Benefit.” The Change in
Control Benefit shall be a monthly benefit starting on the first of the month
after his employment terminates and ending with the payment for the month in
which his death occurs or, if later, after the payment of 120 such payments,
with any such payments made after the death of the Executive to be made (i) to
the Executive’s designated beneficiary, if any or (ii) if there is no
designated beneficiary or the designated beneficiary dies before a total of 120
payments have been made to the Executive and the designated beneficiary, to the
Executive’s estate, and shall be computed under Section 2.2.1 using a Vesting
Percentage of 100% and Continuous Service equal to the Executive’s actual
Continuous Service at the time his employment terminates plus 36 months, with
such monthly benefit reduced by one quarter of one percent (1/4%) per payment
for each full calendar month by which the first day of the month after his
employment terminates precedes the Executive’s attainment of age 65.
2.2.3 TERMINATION
WITHOUT CAUSE OR FOR GOOD REASON. Subject to Sections 2.2.9 and 2.2.10, and
except as otherwise provided in Section 2.2.2, upon termination of the
Executive’s employment at any time by the Company other than
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for Cause or by the Executive
for Good Reason, the Company will promptly (in any event within 90 days
following the Executive’s termination) pay the Executive a cash lump sum, the
amount of which shall equal the actuarial present value of the “Involuntary
Termination Benefit.” The Involuntary
Termination Benefit shall be a monthly benefit starting on the first of the month
after his employment terminates and ending with the payment for the month in
which his death occurs or, if later, after the payment of 120 such payments,
with any such payments made after the death of the Executive to be made (i) to
the Executive’s designated beneficiary, if any or (ii) if there is no
designated beneficiary or the designated beneficiary dies before a total of 120
payments have been made to the Executive and the designated beneficiary, to the
Executive’s estate, and shall be computed under Section 2.2.1 using a Vesting
Percent age of 100% and Continuous Service equal to the Executive’s actual
Continuous Service at the time his employment terminates plus 12 months, with
such monthly benefit reduced by one quarter of one percent (1/4%) per payment
for each full calendar month by which the first day of the month after his
employment terminates precedes the Executive’s attainment of age 65.
2.2.4 TERMINATION
FOR CAUSE. No benefits shall be payable hereunder with respect to the Executive
if his employment is terminated by the Company for Cause.
2.2.5 DISABILITY.
Subject to Sections 2.2.9 and 2.2.10, if the Executive’s employment with the
Company or any Affiliate terminates on account of Disability, the Company shall
promptly (in any event within 90 days following the Executive’s termination)
pay the Executive a cash lump sum, the amount of which shall equal the
actuarial present value of the “Monthly Disability Benefit.” The Monthly Disability Benefit shall be an
amount (computed using a Vesting Percentage of 100%) equal to (i) the product
of the Executive’s Final Average Pay and Benefit Percentage less (ii) his
Qualified Pension Benefits, and shall be payable, without actuarial or other
reduction to reflect commencement of payment before his Normal Retirement Date,
beginning on the first date of the month next following the date of the
Executive’s termination of employment, and ending with the payment for the
month in which his death occurs or, if later, after the payment of 120 such
payments, with any such payments made after the death of the Executive to be
made (i) to the Executive’s designated beneficiary, if any or (ii) if there is
no designated beneficiary or the designated beneficiary dies before a total of
120 payments have been made to the Executive and the designated beneficiary, to
the Executive’s estate.
2.2.6 OTHER
TERMINATION. Subject to Sections 2.2.9 and 2.2.10, and except as otherwise set
forth in Sections 2.2.2, 2.2.3 or 2.2.5, if the Executive terminates his
employment on or after the attainment of age 55 but prior to the attainment of
age 65, the Company will promptly (in any event within 90 days following the
Executive’s termination) pay the Executive a cash lump sum, the amount of which
shall equal the actuarial present value of the “Early Retirement Benefit.” The Early Retirement Benefit shall be a
monthly benefit starting on the first of the month after the Executive’s
termination of employment and ending with the payment for the month in which
his death occurs or, if later, after the payment of 120 such payments, with any
such
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payments made after the death
of the Executive to be made (i) to the Executive’s designated beneficiary, if
any or (ii) if there is no designated beneficiary or the designated beneficiary
dies before a total of 120 payments have been made to the Executive and the
designated beneficiary, to the Executive’s estate, and shall be calculated in
accordance with Section 2.2.1 hereof, reduced by one quarter of one percent
(1/4%) per payment for each full calendar month by which the benefit
commencement date precedes the Executive’s attainment of age 65.
2.2.7 ELECTION
TO RECEIVE NORMAL RETIREMENT BENEFIT AS A MONTHLY BENEFIT. The Executive may
irrevocably elect, provided such election shall not take effect until twelve
months after the date on which it is made, to receive his Normal Retirement
Benefit in the form of a monthly benefit as described in Section 2.2.1, except
that (i) the monthly benefit will start on the first of the month after the
fifth anniversary of the date on which the Executive’s employment terminates,
and (ii) the amount of the monthly benefit will be adjusted such that the
benefit to be received by the Executive, after taking into account that the
first payment will not take place until the fifth anniversary of the date on
which the Executive’s employment terminates, is actuarially equivalent to the
Normal Retirement Benefit.
2.2.8 ELECTION
TO RECEIVE CERTAIN CHANGE IN CONTROL BENEFIT AS A MONTHLY BENEFIT. The
Executive may irrevocably elect, provided such election shall not take effect
until twelve months after the date on which it is made, to receive a Change in
Control Benefit payable pursuant to subsections (i) or (ii) of the first sentence
of Section 2.2.2 above in the form of a monthly benefit as described therein,
except that (i) the monthly benefit will start on the first of the month after
the fifth anniversary of the date on which his employment terminates and (ii)
the amount of the monthly benefit will be adjusted such that the benefit to be
received by the Executive, after taking into account that the first payment
will not take place until the fifth anniversary of the date on which the
Executive’s employment terminates, is actuarially equivalent to the Change in
Control Benefit.
2.2.9 ELECTION
TO RECEIVE ANY OTHER BENEFIT AS A MONTHLY BENEFIT. The Executive may
irrevocably elect, provided such election shall not take effect until twelve
months after the date on which it is made, to receive any other benefit payable
under this Agreement (excluding
a Normal Retirement Benefit payable pursuant to Section 2.2.1, a Change in
Control Benefit payable pursuant to subsections (i) or (ii) of the first
sentence of Section 2.2.2 and a Pre-Retirement Survivor Benefit payable
pursuant to Section 3.2) in the form of a monthly benefit as described in
Sections 2.2.3, 2.2.5, 2.2.6 or other section describing the benefit to which
this election applies, except that (i) the monthly benefit will start on the
first of the month after the fifth anniversary of the date on which his
employment terminates and (ii) the amount of the monthly benefit will be
adjusted such that the benefit to be received by the Executive, after taking
into account that the first payment will not take place until the fifth
anniversary of the date on which the Executive’s employment terminates, is
actuarially equivalent to the Involuntary Termination Benefit, Monthly
Disability Benefit, Early Retirement Benefit or other benefit to which this
election applies.
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2.2.10 TRANSITIONAL
ELECTION RIGHTS. On or after the date this amended and restated Agreement is
executed and on or before December 31, 2008, the Executive (A) may make the election
described (i) in Section 2.2.7 with respect to the Normal Retirement Benefit,
(ii) in Section 2.2.8 with respect to the Change in Control Benefit, or (iii)
in Section 2.2.9 with respect to any other benefit, to receive such benefit in
the form of a monthly benefit as provided therein, but without regard to
the requirements that such election not take effect until twelve months
following the date on which it is made or that the commencement of payment be
deferred for at least five years after the Executive’s termination of
employment; or (B) may revoke a prior election to receive any such benefit in
the form of a monthly benefit and elect to receive a cash lump sum equal to the
actuarial present value of such benefit instead; provided, however, that the
election does not affect any amount to be paid under this Agreement during
calendar year 2008 or cause any amount to be paid during calendar year 2008
that would otherwise be paid after such year.
2.2.11 SIX
MONTH DELAY FOR SPECIFIED EMPLOYEES. Notwithstanding anything in this Agreement
to the contrary, if the Executive is a “specified employee” within the meaning
of Section 409A(a)(2)(B)(i) of the Code as of the date of his termination of
employment, then any amount payable under this Agreement on account of his
termination of employment that would otherwise have been paid to the Executive
during the first six months following his termination of employment shall be
paid instead to the Executive in a single lump sum on the earlier of (a) the
date which is six months following his termination of employment and (b) the
date of his death, and not before.
2.3 SPECIAL BENEFIT. If it
shall be determined by a final administrative decision of the Internal Revenue
Service (which is not appealed by the Executive) or by a final decision of a
court of competent jurisdiction (which is not appealed by the Executive) that
the value of all or any part of any benefit contemplated by this Agreement is
includable in the income of the Executive prior to the actual receipt of such
benefit, the Company shall make a special payment to the Executive, in
discharge of the actuarially equivalent value (based upon the actuarial factors
in effect when benefits other than the benefit described in this Section 2.3
commence to be paid to the Executive hereunder) of any benefits otherwise due
hereunder (and such other benefit shall be reduced to reflect the actuarial
value of any such special payment made pursuant to this Section 2.3), in an
amount equal to the Executive’s estimated federal, state and local income tax
liabilities related to such inclusion and to the inclusion in income of such
special payment. The Executive shall have no obligation to appeal any
determination made by the Internal Revenue Service or the decision of any such
court.
2.4 NO DUPLICATION. Except
as provided in Section 2.3 hereof, in no event shall benefits become payable to
the Executive under more than one Section of this Article II.
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ARTICLE III
SURVIVOR BENEFITS
3.1 ALTERNATE FORMS OF
ANNUITY. Notwithstanding any provision hereof to the contrary, if the Executive
has elected to receive his benefit in the form of a ten-year certain life
annuity as provided in Article II, he may elect with respect to such form of
annuity, at any time prior to commencement of such annuity (and may revoke or
modify any such election and/or make a new election, in each case at any time
and from time to time prior to commencement of such annuity), to receive
instead any other form of life annuity (as defined in Section 1.409A-2(b)(2)(A)
of the Treasury Regulations), including without limitation a 50%, 75% or 100%
joint and survivor annuity, provided that such annuity is actuarially
equivalent to the ten-year certain life annuity the Executive would otherwise
have received and commences on the same date the ten-year certain life annuity
would otherwise have commenced.
3.2 PRE-RETIREMENT SURVIVOR
BENEFIT.
(a) General.
In the event the Executive dies before distribution of his benefits under
Article II has started, the Company shall pay a cash lump sum to the Executive’s
designated beneficiary, equal to the actuarial present value of the “Pre-Retirement
Survivor Benefit.” The Pre-Retirement
Survivor Benefit shall be a monthly benefit, starting on the first of the month
immediately following the month in which the Executive dies, and ending with
the payment for the month in which the death of such designated beneficiary
occurs, and shall be an amount equal to 50% of the monthly benefit the
Executive would have received under Article II hereof had he terminated
employment on the day immediately preceding his death and commenced receiving
benefits on the date on which the Pre-Retirement Survivor Benefit commences, in
the form of an actuarially equivalent 50% joint and survivor annuity, with his
designated beneficiary as the survivor annuitant. Such cash lump sum payment
shall be made as soon as administratively practicable (but in any event no
later than 90 days) after the date of the Executive’s death.
(b) Election
As To Applicable Percentage. For purposes of calculating the Executive’s
benefit under Section 3.2(a), in lieu of 50%, the Executive may elect for the
amount of the Pre-Retirement Survivor Benefit to equal 75% or 100% of the
monthly benefit the Executive would have received under Article II (after
reduction, as provided in subsection (e) below, for the cumulative additional
actuarial cost, if any, associated with such election) had he terminated
employment on the day immediately preceding his death and commenced receiving
benefits on the date on which the Pre-Retirement Survivor Benefit commences, in
the form of an actuarially equivalent 75% or 100% joint and survivor annuity,
with his designated beneficiary as the survivor annuitant. The Executive’s
election pursuant to this Section 3.2(b) as to the applicable percentage amount
of the Pre-Retirement Survivor Benefit (including any change thereto or
revocation thereof) shall be made in accordance with the transitional election
rules stated in Section 2.2.10 or otherwise shall not take effect until twelve
months after the date on which it is made.
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(c) Election
as to Form. In lieu of a lump sum, the Executive may elect for his
designated beneficiary to receive the benefit described in Section 3.2(a) in
the form of the Pre-Retirement Survivor Benefit. The amount of such benefit
shall equal the amount elected by the Executive pursuant to Section 3.2(b) if
applicable. The Executive’s election pursuant to this Section 3.2(c) to receive
the monthly form of benefit (including any change thereto or revocation
thereof) shall either be made in accordance with the transitional election
rules stated in Section 2.2.10 or otherwise shall not take effect until twelve
months after the date on which it is made.
(d) Election
to Receive Alternative Benefit. In lieu of the benefit described in Section
3.2(a), the Executive may elect, in the event the Executive dies before
distribution of his benefits under Article II has started, for the Company to
pay a cash lump sum to the Executive’s designated beneficiary, equal to the
lump sum the Executive would have received under the applicable section of
Article II (after reduction, as provided in subsection (e) below, for the
cumulative additional actuarial cost, if any, associated with such election)
had he terminated employment on the day immediately preceding his death. Such
payment shall be made as soon as administratively practicable (but in any event
no later than 90 days) after the date of the Executive’s death. The Executive’s
election pursuant to this Section 3.2(d) to receive the alternative lump-sum
benefit (including any change thereto or revocation thereof) shall be made in
accordance with the transitional election rules stated in Section 2.2.10 or
otherwise shall not take effect until twelve months after the date on which it
is made.
(e) Reduction
for Additional Actuarial Cost. The benefit payable to the Executive under
Article II hereof shall be reduced to reflect the cumulative additional
actuarial cost, if any, associated with the Executive’s elections pursuant to
Section 3.2(b) or 3.2(d) above. The amount of such reduction for each period
described below shall equal the excess of (i) the actuarial cost of providing
the benefit described in Section 3.2(a) (after taking into account the
Executive’s election pursuant to Section 3.2(b)) or Section 3.2(d) (as the case
may be), over (ii) the actuarial cost of providing the benefit described in
Section 3.2(a) (without regard to the Executive’s election pursuant to Section
3.2(b), if any). For purposes of making this calculation, the actuarial cost of
each benefit shall be determined on an annual basis, initially on or about the
first of the month following the month in which the election pursuant to
Section 3.2(b) or 3.2(d) is made, and recalculated on or about January 1 of
each year thereafter while the election remains in effect, using an interest
rate equal to 120% of the immediate interest rate for the immediately preceding
December as published by the PBGC for purposes of paying lump sum benefits
under plans with respect to which the PBGC acts as trustee and the mortality
table specified in Section 1.1. The additional actuarial cost shall be accrued
against the benefit payable to the Executive under Article II on a monthly
basis. For purposes of all actuarial calculations under this Section 3.2, if a
beneficiary is not a natural person living at the time of the Executive’s
death, the beneficiary shall be assumed to be exactly fifteen (15) years
younger than the Executive.
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(f) Beneficiary
Matters. For purposes of Article III, if the Executive dies without
designating a beneficiary, the Executive’s beneficiary shall be deemed to be
the Executive’s estate. If the beneficiary of the Executive is not a natural
person living at the time of the Executive’s death, the beneficiary shall be
paid only in the form of a cash lump sum, equal to the amount payable under Section
3.2(a) or, if applicable, Section 3.2(b) or (d) based on an election made by
the Executive.
ARTICLE IV
MISCELLANEOUS
4.1 BINDING AGREEMENT. This
Agreement and all rights of the Executive hereunder shall inure to the benefit
of and be enforceable by the Executive’s person or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
4.2 NOTICE. Notices,
elections, demands and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
by hand (or received by telecopy, telex or similar device) or mailed by United
States certified or registered mail, return receipt re quested, postage
prepaid, addressed as follows:
If to the Executive:
Xx. Xxxxx X Xxxxxx
c/o Hexcel Corporation
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
If to the Company:
Hexcel Corporation
Two Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attn: General Counsel
or to such other address as any party may have furnished to the other
in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
4.3 GENERAL PROVISIONS. No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by the
Executive and such officer of the Company as may be specifically designated by
the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
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Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without regard to its conflicts of law principles.
4.4 VALIDITY. The invalidity
or unenforceability of any provision or provisions of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
4.5 COUNTERPARTS. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.
4.6 ARBITRATION. Except as
set forth in Section 4.9, any dispute or controversy arising under or in
connection with this Agreement shall be settled in accordance with the
provisions of Section 17 of the Employment Agreement, including the provisions
for advancement of legal fees of the Executive.
4.7 ENTIRE AGREEMENT. This
Agreement sets forth the entire agreement of the parties hereto in respect of
the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto; and any prior agreement of the parties hereto in respect
of the subject matter contained herein is hereby terminated and cancelled and
of no further force or effect.
4.8 NO RIGHT OF OFFSET. The
amount of any payment or benefit provided for in this Agreement shall not be reduced
by any compensation earned by the Executive as a result of employment by
another employer, by retirement benefits (except as otherwise set forth in this
Agreement), by offset against any amount owed or claimed to be owed by the
Executive to the Company, or otherwise.
4.9 PROTECTIVE PROVISIONS.
The Executive and the Company shall cooperate with each other by furnishing any
and all information and computations reasonably requested by the other in order
to determine the amounts payable hereunder or to facilitate the payment of
benefits hereunder. If upon written request of the Company, the Executive
shall, within ninety days thereof (180 days if the Executive is Disabled), if
such information is reasonably available to the Executive, fail to comply with
such a request for information, the Company may terminate any benefits
otherwise payable under this Agreement.
4.10 ASSIGNMENT. This Agreement
shall inure to the benefit of and be binding upon the Company and its
successors. It shall not be assignable by the Company except in connection with
the sale or other disposition of all or substantially all of the
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assets or business of the
Company, whether by merger, consolidation or otherwise. The voluntary or
involuntary assignment, encumbrance or alienation of any benefit hereunder or
any interest therein, whether or not payable to the Executive, is not permitted
and will not be recognized. Any such purported assignment, encumbrance or
alienation, by operation of law or otherwise, shall be void. Subject to the
provisions of applicable law, no payment of any benefit shall, prior to actual
receipt thereof by the Executive or his designated beneficiary, be subject to
garnishment, attachment, execution, levy or other legal process for debts or
for alimony or support of any spouse, former spouse or other relative.
4.11 CODE SECTION 409A. The terms
of this Agreement are intended to comply with applicable provisions of Sections
409A(a)(2) through (4) of the Code, and shall be interpreted to the extent
context reasonably permits in accordance with this intent. The parties agree to
modify this Agreement or the timing (but not the amount) of any payment to the
extent necessary to comply with Section 409A of the Code and avoid application
of any taxes, penalties, or interest thereunder. However, in the event that any
amounts payable under this Agreement are subject to any taxes, penalties or
interest under Section 409A, the Employee shall be solely liable for the
payment of any such taxes, penalties or interest.
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