EXHIBIT 5
AGREEMENT
dated as of
October 11, 2000
by and among
Hexcel Corporation,
LXH, L.L.C.
and
LXH II, L.L.C.
AGREEMENT
AGREEMENT (this "Agreement"), dated as of October 11, 2000, by
and among Hexcel Corporation, a Delaware corporation (the "Company"), LXH,
L.L.C., a Delaware limited liability company ("LXH") and LXH II, L.L.C., a
Delaware limited liability company (together with LXH, the "Investors").
W I T N E S S E T H :
WHEREAS, Ciba Specialty Chemicals Holding Inc., a corporation
organized under the laws of Switzerland ("Ciba SCH"), Ciba Specialty
Chemicals Inc., a corporation organized under the laws of Switzerland and
wholly-owned subsidiary of Ciba SCH ("Ciba SCI") and Ciba Specialty
Chemicals Corporation, a corporation organized under the laws of Delaware
and wholly-owned subsidiary of Ciba SCH (collectively with Ciba SCH and
Ciba SCI, "Ciba"), own beneficially and of record an aggregate of
18,021,748 shares of common stock, par value $0.01 per share (the "Common
Stock"), of the Company;
WHEREAS, simultaneously herewith, the Investors and Ciba are
entering into a stock purchase agreement attached as Exhibit A hereto (the
"Stock Purchase Agreement"), pursuant to which Ciba has agreed to sell to
the Investors and the Investors have agreed to purchase from Ciba up to a
number of shares of Common Stock owned beneficially and of record by Ciba
(the "Shares") constituting not more than 39.3% of the issued and
outstanding shares of Common Stock;
WHEREAS, certain independent directors of the board of directors
of the Company (the "Board") have approved and consented to the sale of the
Shares by Ciba to the Investors on the terms set forth in the Stock
Purchase Agreement;
WHEREAS, in connection with the transactions contemplated by the
Stock Purchase Agreement, the Company and the Investors will enter into (i)
a governance agreement in the form of Exhibit B hereto (the "Governance
Agreement") and (ii) a registration rights agreement in the form of Exhibit
C hereto (the "Registration Rights Agreement"); and
WHEREAS, in connection with the execution by the Investors of the
Stock Purchase Agreement, the Notes (as defined in the Stock Purchase
Agreement), the Pledge Agreements (as defined in the Stock Purchase
Agreement) and all other contracts, agreements, schedules, certificates and
other documents being delivered pursuant to or in connection with the Stock
Purchase Agreement or such other documents or the transactions contemplated
thereby (the "Stock Purchase Transaction Documents"), and in order to
induce the Investors and their Affiliates to execute and deliver the
Governance Agreement and the Registration Rights Agreement, the Company is
hereby making certain representations and warranties and entering into
certain agreements.
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
PURPOSE OF AGREEMENTS
1.1. Purpose. The Company acknowledges and agrees that it is
executing and delivering this Agreement (i) in connection with the
execution and delivery by the Investors of the Stock Purchase Transaction
Documents and the consummation of the transactions contemplated thereby,
and (ii) to induce the Investors and their Affiliates to execute and
deliver the Governance Agreement and the Registration Rights Agreement and
to consummate the transactions contemplated thereby.
1.2. Closing. The closing of the transactions contemplated hereby
shall take place at the offices of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 simultaneously with
the Closing under the Stock Purchase Transaction Documents, or at such
other place, time and/or date as shall be mutually agreed by the Company
and the Investors.
1.3. Capitalized Terms. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in Section 8.1.
ARTICLE II
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:
2.1. 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 would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. A correct and complete copy of the bylaws of the Company as
shall be in effect as of the Closing is attached hereto as Exhibit D (the
"By-Laws").
(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 would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule 2.1(b), (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 Schedule 2.1(b), the Company does not own, directly or indirectly,
any interest in any corporation, limited liability company, partnership,
business association or other Person.
2.2. Due Authorization. The Company has all right, corporate
power and authority to enter into this Agreement, the Ciba Documents, the
Governance Agreement and the Registration Rights Agreement and to
consummate the transactions contemplated hereby and thereby. The execution
and delivery by the Company of this Agreement, the Ciba Documents, the
Governance Agreement and the Registration Rights Agreement, and the
compliance by the Company with each of the provisions of this Agreement,
the Ciba Documents, the Governance Agreement and the Registration Rights
Agreement (a) are within the corporate power and authority of the Company,
and (b) have been duly authorized by all necessary corporate action of the
Company. This Agreement and the Consent and Termination Agreement have
been, and each of the Governance Agreement, the Registration Rights
Agreement and the Supplemental Indenture when executed and delivered by the
Company will be, duly and validly executed and delivered by the Company,
and each of this Agreement and each Ciba Document constitutes, and each of
such other 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 By-Laws have been duly adopted by the
Board and will be effective upon the Closing.
2.3. 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 October 6, 2000, 36,950,954 shares were issued and
outstanding excluding 859,497 shares of Common Stock held in the Company's
treasury as of such date and (ii) 20,000,000 shares of Preferred Stock, no
par value per share, of which no shares are issued and outstanding. All of
the issued and outstanding shares of Common Stock, including the Shares,
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 by Ciba. As of
the date hereof, there is outstanding (i) $114,435,000 in aggregate
principal amount of the Company's 7.0% Convertible Subordinated Notes, due
2003, which notes are convertible into 7,238,140 shares of Common Stock and
(ii) $25,625,000 in aggregate principal amount of the Company's 7.0%
Convertible Subordinated Debentures, due 2011, which notes are convertible
into 834,147 shares of Common Stock. Except as described in the SEC Reports
(as defined below) and other than pursuant to stock incentive plans
approved by the Board, 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. Except as set forth on Schedule 2.3, and other
than with respect to Ciba, (i) the Company has not agreed to register any
securities under the Securities Act or under any state securities law or
granted registration rights to any Person or entity 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.
2.4. SEC Reports. The Company has timely filed all proxy
statements, reports and other documents required to be filed by it under
the Exchange Act since January 1, 1997 and made available to the Investors
complete copies of all annual reports, proxy statements and other reports
filed by the Company under the Exchange Act, 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 Exchange Act 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.
2.5. 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, 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 (i) liabilities and obligations
reflected or disclosed in the audited consolidated balance sheet of the
Company and the Subsidiaries as of December 31, 1999 or the unaudited
balance sheet as of June 30, 2000 and the footnotes thereto, (ii)
liabilities and obligations incurred in the ordinary course of business
since June 30, 2000 or (iii) liabilities and obligations which would not,
individually or in the aggregate, reasonably be expected to have or result
in a Material Adverse Effect.
2.6. Consents, No Violations. Except with respect to the
Governance Agreement, dated February 29, 1996, between the Company and Ciba
(the "Existing Governance Agreement"), the Credit Agreement, the Indenture,
dated February 29, 1996, between the Company and First Trust of California,
National Association, as amended through the date hereof (the "Ciba
Indenture") and the Company's or any of its Subsidiary's employee or
director benefit plans, arrangements or agreements, the execution, delivery
or performance (i) by the Company of this Agreement, the Ciba Documents,
the Governance Agreement and the Registration Rights Agreement and the
consummation of the transactions contemplated hereby and thereby, and (ii)
by Ciba and the Investors of the Stock Purchase Agreement and the
consummation of the transactions contemplated thereby, do not and will not
(a) 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 the Subsidiaries, (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 (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 would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or (c) except for any required filing under the HSR Act, the
German Act Against Restraints of Competition and any other foreign
governmental and regulatory filings, notices and approvals required to be
made or obtained as contemplated by Section 5.1(f), and 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.
2.7. Compliance with Laws. Except as disclosed in the SEC
Reports, the Company and its Subsidiaries are, and since January 1, 1993,
have been, in compliance in all material respects with all 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 would
not, individually or in the aggregate, 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 would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
2.8. Absence of Certain Changes. Except as disclosed in the SEC
Reports, since June 30, 2000 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.
2.9. Litigation. (a) Except as set forth on Schedule 2.9(a) or as
disclosed in the SEC Reports, 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 would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(b) Except as disclosed in the SEC Reports, 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 would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
2.10. 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 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 or previously disclosed
in writing to the Investors and (b) for instances of noncompliance or
liabilities or obligations that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Except
as any of the following either individually or in the aggregate 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 exists 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 Schedule 2.10(c), 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 Subsidiary to amend or terminate any Plan.
2.11 Existing Governance Agreement; Section 203 of the DGCL;
Takeover Statute. The Independent Directors (as defined in the Existing
Governance Agreement) have taken all actions necessary or advisable under
the Existing Governance Agreement to approve and consent to the
transactions contemplated hereby (including the purchase of the Shares by
the Investors) and by the Ciba Documents. The Board 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 the Stock
Purchase Agreement or the consummation of any of the transactions
contemplated by the Stock Purchase Agreement. The execution, delivery and
performance of the Stock Purchase 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.
2.12 Real Property Holding Corporation. The Company is not, and
has not been at any time during the past 5 years, a "United States real
property holding corporation" within the meaning of Section 897(c)(2) of
the Internal Revenue Code of 1986, as amended.
2.13 Negotiations with Third Parties. Except in connection with
the transactions contemplated by the Stock Purchase Transaction Documents,
the Company is not currently, and since September 24, 2000 has not been,
directly or indirectly, negotiating, seeking to negotiate or otherwise
engaging in discussions with any Person relating to (a) an acquisition of
greater than 20% of the Common Stock (including the Shares), (b) a tender
or exchange offer, (c) a merger, consolidation or other business
combination involving the Company or any of its 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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor hereby represents and warrants to the Company,
severally and not jointly, as of the date hereof and as of the Closing, as
follows:
3.1. Organization. Such Investor is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the requisite power and authority to carry on its
business as it is now being conducted.
3.2. Due Authorization. Such Investor has all right, power and
authority to enter into this Agreement, the Governance Agreement, the Stock
Purchase Transaction Documents to which it is a party and the Registration
Rights Agreement and to consummate the transactions contemplated hereby and
thereby. The execution and delivery by such Investor of this Agreement, the
Governance Agreement, the Stock Purchase Transaction Documents to which it
is a party and the Registration Rights Agreement, and the compliance by
such Investor with each of the provisions of this Agreement and each of the
Governance Agreement, the Stock Purchase Transaction Documents to which it
is a party and the Registration Rights Agreement (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 such other agreements when executed and delivered by such Investor
will be, duly and validly executed and delivered by such Investor, and this
Agreement constitutes, and each of such other 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.
3.3. Consents, No Violations. Neither the execution, delivery or
performance by such Investor of this Agreement, the Stock Purchase
Agreement, the Governance Agreement or the Registration Rights Agreement
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, the
German Act Against Restraints of Competition, and any other foreign
governmental and regulatory filings, notices and approvals required to be
made or obtained as contemplated by Section 5.1(f) 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.
3.4. Ownership of Capital Stock. Neither Investor nor any of
their respective subsidiaries, directors, officers or members beneficially
owns, directly or indirectly, any capital stock of the Company or is party
to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any capital stock of the Company
or any security convertible into capital stock of the Company, other than
as contemplated by this Agreement.
ARTICLE IV
COVENANTS
4.1. Conduct of Business by the Company 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, unless the Investors otherwise agree in writing,
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 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 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;
provided, however, that during such period the Company and its Significant
Subsidiaries shall be permitted to take all actions as set forth in Section
2.06 of the Governance Agreement which would not require the approval of a
majority of the directors appointed by the Investors to the Board;
provided, however, that the Company shall not issue any shares of Common
Stock unless the Investors consent in writing to the offering price for
such shares of Common Stock. Except as expressly contemplated by this
Agreement or as set forth on Schedule 4.1, 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 Company's certificate of incorporation or bylaws or
other organizational documents except pursuant to Section 4.2 of this
Agreement;
(b) take any action that is reasonably likely to result in (i)
any of the representations and warranties set forth in Article II becoming
false or inaccurate in any material respect as of the Closing Date or (ii)
any of the conditions to the obligations of the Investors set forth in
Section 5.2 not being satisfied; or
(c) agree to take any of the actions restricted by this Section
4.1.
4.2. Amendment of By-Laws of the Company. Simultaneously with the
Closing, the By-Laws shall be in full force and effect and following the
Closing, the Company shall use its reasonable best efforts to ensure that
the By-Laws will not be inconsistent, at any time, with any of the terms
and provisions contained in the Governance Agreement.
4.3. HSR Act; Other Filings. Each of the Investors and the
Company shall cooperate in making required filings under the HSR Act, the
German Act Against Restraints of Competition and any other foreign
governmental and regulatory filings, notices and approvals required to be
made or obtained as contemplated by Section 5.1(f) hereof, and shall use
its commercially reasonable efforts to take, or cause to be taken, all
actions necessary, proper or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement.
4.4. Consents; Approvals. Except as set forth in Schedule 4.4,
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, (ii) all Consents pursuant to the Company's
or any of the Subsidiaries' financing documents, including all indentures
and credit agreements of the Company or any of the Subsidiaries and the
Consent of the Majority Lenders under the Credit Agreement, and (iii) all
United States and foreign governmental and regulatory rulings and
approvals), required in connection with the consummation of the
transactions contemplated by the Stock Purchase Agreement, the Governance
Agreement and the Registration Rights Agreement, in each case as promptly
as practicable, except where the failure to obtain such Consents would not,
individually or in the aggregate, have a Material Adverse Effect.
4.5. Listing. The Company shall use its commercially reasonable
efforts to continue to have its Common Stock listed on the New York Stock
Exchange or a national securities exchange for so long as the Investors own
any Shares.
4.6. No Solicitation. The Company agrees that, from the date
hereof until the earlier of (x) the Closing and (y) termination of this
Agreement, (i) it shall not, and it shall cause its agents, affiliates,
representatives, and any other person acting on its behalf, not to,
directly or indirectly, (a) provide any information concerning the Company
or Ciba to any third party (other than the Investors and their Affiliates,
representatives and agents) expressing an interest in acquiring all or a
portion of the Shares or (b) solicit, negotiate with respect to,
facilitate, or approve any sale or offer for the purchase of all or any
portion of the Shares, or options or warrants to purchase all or any
portion of the Shares or any securities convertible into or exchangeable
for all or any portion of the Shares, and it shall terminate any existing
activities or discussions with any party other than the Investors with
respect to the foregoing and (ii) it shall promptly advise the Investors of
any inquiry, request or proposal relating thereto that may be received,
including the terms of such inquiry, request or proposal and the identity
of the inquirer, requestor or offeror; provided, that the Company may (I)
at any time prior to the Closing Date, if the Company is not otherwise in
violation of this Section 4.6, provide information to, and negotiate or
otherwise engage in discussions with, any party who delivers a written
proposal relating to (a) an acquisition of all or a portion of the Common
Stock (including the Shares), (b) a tender or exchange offer, (c) a merger,
consolidation or other business combination involving the Company or any of
its Subsidiaries, or (d) an offer to acquire in any manner a greater than
20% equity interest in, or more than 20% of the assets of, the Company or
any of its Subsidiaries, if and so long as the Board determines in good
faith by a majority vote, based upon advice of its outside legal counsel,
that failing to take such action would reasonably be expected to constitute
a breach of the fiduciary duties of the Board; and (II) take a position
with respect to such proposal, or amend or withdraw such position, as
required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act.
4.7. Cooperation. Subject to Section 4.6, each of the Investors
and the Company agrees to use its commercially reasonable efforts to take,
or cause to be taken, all such further actions as shall be necessary to
make effective and consummate the transactions contemplated by this
Agreement.
4.8. Capitalization Certificate. After the close of business on
the business day immediately prior to the Closing, the Company shall
deliver to the Investors and Ciba a certificate executed by the Company's
Chief Financial Officer which certificate shall specify the number of
shares of Common Stock issued and outstanding as of the close of business
on such date.
4.9. Execution and Delivery of Agreements by the Company. Subject
to Section 4.6, prior to or simultaneously with the Closing, the Company
shall execute and deliver (i) the Governance Agreement and the Registration
Rights Agreement (in each case upon satisfaction or waiver of the
conditions set forth in Sections 5.1 and 5.3 hereto) and (ii) the
Supplemental Indenture.
4.10. Execution and Delivery of Agreements by the Investors.
Prior to or simultaneously with the Closing, upon satisfaction or waiver of
the conditions set forth in Sections 5.1 and 5.2, the Investors shall
execute and deliver the Governance Agreement and the Registration Rights
Agreement.
ARTICLE V
CONDITIONS
5.1. Conditions to Obligations of the Investors and the Company.
The respective obligations of the Investors and the Company to execute and
deliver the Governance Agreement and the Registration Rights Agreement are
subject to the satisfaction or waiver at or prior to the Closing of each of
the following conditions:
(a) No statute, rule or regulation or order of any court or
administrative agency shall be in effect which prohibits the consummation
of the transactions contemplated hereby;
(b) The transactions contemplated by the Stock Purchase
Transaction Documents shall have been consummated simultaneously with the
closing hereunder;
(c) The Company shall have received the Consent of the Majority
Lenders under the Credit Agreement, which Consent shall be reasonably
acceptable to the Investors and the Company;
(d) Any waiting period (and any extension thereof) under the HSR
Act applicable to this Agreement and the transactions contemplated hereby
shall have expired or been terminated;
(e) The German Federal Cartel Office shall have approved the
transactions contemplated hereby; and
(f) The Company and/or the Investors shall have made any other
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 the Stock Purchase Agreement, this
Agreement, the Governance Agreement, the Registration Rights Agreement and
the Ciba Documents.
5.2. Conditions to Obligations of the Investors. The obligations
of the Investors to execute and deliver the Governance Agreement and the
Registration Rights Agreement shall be subject to the satisfaction or
waiver at or prior to the Closing of each of the following conditions:
(a) Each of the representations and warranties of the Company
contained in this Agreement shall be true and correct when made and as of
the Closing (except to the extent such representations and warranties are
made as of a particular date, in which case such representations and
warranties shall have been true and correct in all material respects as of
such date);
(b) The Company shall have performed, satisfied and complied in
all material respects with all of their covenants and agreements set forth
in this Agreement to be performed, satisfied and complied with prior to or
at the Closing;
(c) The Company shall have delivered to the Investors an
officer's certificate certifying as to the Company's compliance with the
conditions set forth in clause (a) of Section 5.1 and clauses (a) and (b)
of this Section 5.2;
(d) The Investors shall have received a reasonably acceptable
opinion from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the
Company, addressing the due authorization and enforceability of this
Agreement with respect to the Company and the representations and
warranties made by the Company in Section 2.6 of this Agreement;
(e) The Ciba Documents shall be in full force and effect;
(f) The agreements, each dated as of the date hereof, from the
Company's employees set forth on Exhibit F to the Stock Purchase Agreement
shall be in full force and effect as of the Closing; and
(g) Xx. Xxxx X. Xxx'x employment agreement attached hereto as
Exhibit E and all other agreements contemplated thereby shall be in full
force and effect as of the Closing;
5.3. Conditions to Obligations of the Company. The obligations of
the Company to execute and deliver the Governance Agreement and the
Registration Rights Agreement shall be subject to the satisfaction or
waiver at or prior to the Closing of each of the following conditions:
(a) Each of the representations and warranties of the Investors
contained in this Agreement shall be true and correct when made and as of
the Closing (except to the extent such representations and warranties are
made as of a particular date, in which case such representations and
warranties shall have been true and correct in all material respects as of
such date);
(b) The Investors shall have performed, satisfied and complied in
all material respects with all of its covenants and agreements set forth in
this Agreement to be performed, satisfied and complied with prior to or at
the Closing Date;
(c) The Investors shall have delivered to the Company an
officer's certificate certifying as to the Investors' compliance with the
conditions set forth in clause (a) of Section 5.1 and clauses (a) and (b)
of this Section 5.3;
(d) The trustee under the Indenture shall have executed and
delivered the Supplemental Indenture; and (e) The Company shall have
received a reasonably acceptable opinion from Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx, counsel to the Investors, addressing the due authorization and
enforceability of this Agreement with respect to the Investors and the
representations and warranties made by the Investors in Section 3.3 of this
Agreement.
ARTICLE VI
TERMINATION
6.1. Termination. This Agreement shall terminate automatically,
without any further action required by the parties hereto, upon the earlier
of (i) the termination of the Stock Purchase Agreement, or (ii) the latest
of (A) November 9, 2000, if the Closing shall not have occurred by such
date, (B) November 27, 2000, if the Closing shall not have occurred by such
date and if the condition set forth in Section 5.1(c) shall not have been
satisfied on or prior to November 27, 2000, (C) two business days after the
satisfaction of the conditions set forth in Sections 5.1(d), 5.1(e) and
5.1(f) hereof (the earlier of such dates referred to in (i) and (ii) above,
the "Termination Date"); provided, however, that if the Company receives an
Acquisition Proposal with respect to which the Board has made a
determination pursuant to Section 4.6 hereof, and the Company executes a
definitive agreement with respect to such Acquisition Proposal prior to the
Termination Date, the Company, by a vote of a majority of the Independent
Directors, can elect to terminate this Agreement prior to the Termination
Date by delivering written notice of such termination to the Investors.
Notwithstanding the foregoing, if the Company terminates this Agreement
upon execution of a definitive agreement with respect to an Acquisition
Proposal, then upon the earlier of (x) the date such Acquisition Proposal
is abandoned or terminated and (y) 120 days after execution of such
definitive agreement, if the transactions contemplated by such Acquisition
Proposal are not consummated within such 120 day period, this Agreement
shall be automatically reinstated and the "Termination Date" shall be
deemed to be the earlier of (i) the termination of the Stock Purchase
Agreement, or (ii) 21 business days after the date of such reinstatement if
the Closing shall not have occurred by such date.
6.2. Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 6.1, this Agreement shall forthwith
become void and there shall be no liability on the part of any party hereto
(or any stockholder, director, officer, partner, employee, agent,
consultant or representative of such party) except as set forth in this
Section 6.2, provided that nothing contained in this Agreement shall
relieve any party from liability for any breach of the representations and
warranties set forth in Articles II and III of this Agreement (subject to
Section 7.4) or of the covenants set forth in Article IV of this Agreement
and provided further that this Section 6.2 and Sections 7.1, 7.2, 7.3, 7.4,
8.2, 8.3, 8.7, 8.12, 8.13 and 8.14 shall survive termination of this
Agreement.
ARTICLE VII
INDEMNIFICATION
7.1. Survival. 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 2.1(a), 2.2 and 2.3 shall survive until the expiration of the
applicable statute of limitations (including any extensions thereof). 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 VII 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 VII. The covenants and
agreements of the parties hereto contained in this Agreement shall survive
the Closing until performed in accordance with their terms.
7.2. 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 (i) the breach of any of the representations or warranties
made by the Company in this Agreement or (ii) the breach of any covenant or
agreement made by the Company in this Agreement.
(b) The Investors shall 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 (i) the
breach of any of the representations or warranties made by the Investors in
this Agreement or (ii) the breach of any covenant or agreement made by the
Investors 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 7.2(a)(i) above with respect to any Losses unless the aggregate
amount of Losses incurred by the Investor Indemnified Persons thereunder
exceeds $1,597,750, and the Company shall then only be liable for one-third
of such Losses that exceed $1,597,750. The maximum amount recoverable under
Section 7.2(a)(i) shall be $10,000,000. No claim may be made against the
Investors for indemnification with respect to breaches of representations
and warranties pursuant to Section 7.2(b)(i) above with respect to any
Losses unless the aggregate amount of Losses incurred by the Company
Indemnified Persons thereunder exceeds $1,597,750, and the Investors shall
then only be liable for one-third of such Losses that exceed $1,597,750.
The maximum amount recoverable under Section 7.2(b)(i) shall be
$10,000,000.
(d) No Investor Indemnified Person may pursue a claim for
indemnification under Section 7.2(a)(i) after the first anniversary of the
Closing Date unless prior to such anniversary such Investor Indemnified
Person submits a good faith, reasonably detailed claim in writing that such
Investor Indemnified Person reasonably believes is based on factual
contentions that have evidentiary support and that such Investor
Indemnified Person has incurred or will incur a Loss, which in the case of
claims related to Sections 2.5 and 2.7 of this Agreement may be based upon
facts that such Investor Indemnified Person had knowledge of at or prior to
the Closing Date only if such claim also relies upon a materially adverse
occurrence or development that occurs after the Closing Date. In no case
shall any payment be made (A) in the case of an indemnification claim under
Section 7.2(a)(i) or 7.2(a)(ii) until a Loss occurs or (B) in the case of
an indemnification claim under Section 7.2(a)(i) for any Loss incurred
after the date that is 30 months after the Closing Date. No Person shall
have any liability to any Investor Indemnified Person under Section
7.2(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 7.2(d),
(i) the Investors shall only be deemed to have knowledge of a fact if any
of the Persons listed on Schedule 7.2 has knowledge of the particular fact
and (ii) such individual shall be deemed to have knowledge only to the
extent of his knowledge of such fact.
7.3. 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 7.3 shall not relieve the applicable Indemnifying
Party of its obligations under this Article VII, except to the extent that
such Indemnifying Party is prejudiced by such failure to give notice;
provided, further, that the applicable Indemnifying Party shall have no
obligations under this Article VII unless such written notice is received
by the Indemnifying Party within the survival periods set forth in Section
7.1. 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. Such notice
shall be a condition precedent to any liability of any Indemnifying Party
for any Claim under the provisions for indemnification contained in this
Agreement.
(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 7.3(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 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, such
Indemnifying Party shall not be liable to such Indemnitee under this
Article VII 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 the defendants in any
such claim included 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
in that event the reasonable fees and expenses of such separate counsel
shall 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 7.3 within 30 days
of notice from the Indemnitee pursuant to Section 7.3(a), such Indemnitee
may compromise, settle or defend such Claim.
(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 necessary or appropriate for such defense.
(d) If the 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, less any expenses incurred in
connection therewith, 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.
7.4. Sole Remedy. Except in the case of fraud, the rights to
indemnification provided for in this Article VII for a breach of
representations or warranties by the Investors (in the case of
indemnification pursuant to Section 7.2(b)(i)) or the Company (in the case
of indemnification pursuant to Section 7.2(a)(i)) shall constitute the sole
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 VIII
MISCELLANEOUS
8.1. Defined Terms; Interpretations. The following terms, as used
herein, shall have the following meanings:
"Acquisition Proposal" shall mean a bona-fide written offer by
any Person not affiliated with the Company relating to (a) a merger,
consolidation or other business combination involving the Company, or (b)
an offer to acquire in any manner a greater than 50% equity interest in, or
more than 50% of the assets of, the Company and its Subsidiaries taken as a
whole.
"Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Exchange Act.
"Agreement" shall have the meaning ascribed thereto in the
preamble.
"Board" shall have the meaning ascribed thereto in the recitals.
"Ciba" shall have the meaning ascribed thereto in the recitals.
"Ciba SCH" shall have the meaning ascribed thereto in the
recitals.
"Ciba SCI" shall have the meaning ascribed thereto in the
recitals.
"Ciba Documents" shall mean the Consent and Termination Agreement
and the Supplemental Indenture.
"Ciba Indenture" shall have the meaning ascribed thereto in
Section 2.6.
"Claim" shall have the meaning ascribed thereto in Section
7.3(a).
"Closing" shall have the meaning ascribed thereto in the Stock
Purchase Agreement.
"Closing Date" shall mean have the meaning ascribed thereto in
the Stock Purchase Agreement.
"Common Stock" shall have the meaning ascribed thereto in the
recitals.
"Company" shall have the meaning ascribed thereto in the
preamble.
"Company Indemnified Person" shall have the meaning ascribed
thereto in Section 7.2(b).
"Consent and Termination Agreement" shall mean the Consent and
Termination Agreement, dated the date hereof, between the Company and Ciba
SCH.
"Consents" shall have the meaning ascribed thereto in Section
4.4.
"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.
"DGCL" shall mean the Delaware General Corporation Law.
"Encumbrances" shall have the meaning ascribed thereto in Section
2.1(b).
"ERISA" shall have the meaning ascribed thereto in Section
2.10(a).
"ERISA Affiliate" shall have the meaning ascribed thereto in
Section 2.10(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of
the SEC thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Exchange Act of 1934,
as amended, shall include reference to the comparable section, if any, of
any such successor federal statute.
"Existing Governance Agreement" shall have the meaning ascribed
thereto in Section 2.6.
"GAAP" shall have the meaning ascribed thereto in Section 2.5.
"Governance Agreement" shall have the meaning ascribed thereto in
the recitals.
"Governmental Entity" shall mean any supernational, national,
foreign, federal, state or local judicial, legislative, executive,
administrative or regulatory body or authority.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations thereunder.
"Indemnifying Party" shall have the meaning ascribed thereto in
Section 7.3(a).
"Indemnitee" shall have the meaning ascribed thereto in Section
7.3(a).
"Independent Director" shall mean any director of the Company who
was not nominated to the Board by Ciba and who (i) is not and has never
been an officer, employee or director of Ciba or any affiliate (other than
the Company) or associate of Ciba and (ii) has no affiliation or
compensation, consulting or contractual relationship with Ciba or any of
its affiliates (other than the Company) such that a reasonable person would
regard such director as likely to be unduly influenced by Ciba or any of
its affiliate (other than the Company).
"Investors" shall have the meaning ascribed thereto in the
preamble.
"Investor Indemnified Person" shall have the meaning ascribed
thereto in Section 7.2(a).
"Knowledge" shall mean, with respect to the Company, the
knowledge of Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx, Xxxx X. Xxxxxxx, Xxxxxxx
X. Xxxxxxx, Xxxxxxx Xxxx, Xxxx X. Xxx, Xxx X. Xxxxxxxx, Xxxxxx X. Xxxxx,
Xxxxxx X. Xxxxxxxx, Xxxxxx X.X. Xxxxxx and Xxxxx X. Xxxxxxx.
"Laws" shall include all foreign, federal, state, and local laws,
statutes, ordinances, rules, regulations, orders, judgments, decrees and
bodies of law.
"Licenses" shall have the meaning ascribed thereto in Section
2.7.
"Litigation" shall have the meaning ascribed thereto in Section
2.9(a).
"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).
"Majority Lenders" shall have the meaning ascribed thereto in the
Credit Agreement.
"Material Adverse Effect" shall mean a material adverse effect on
the properties, business, prospects (but only with respect to the
representations and warranties contained in Sections 2.5 and 2.7),
operations, results of operations, earnings, assets, liabilities or
condition (financial or otherwise) of the Company and its Subsidiaries
taken as a whole.
"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.
"Plans" shall have the meaning ascribed thereto in Section
2.10(a).
"Registration Rights Agreement" shall have the meaning ascribed
thereto in the recitals.
"SEC" shall mean the Securities and Exchange Commission.
"SEC Reports" shall have the meaning ascribed thereto in Section
2.4.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and regulations of
the SEC thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Act shall include
reference to the comparable section, if any, of such successor federal
statute.
"Shares" shall have the meaning ascribed thereto in the recitals.
"Significant Subsidiaries" shall have the meaning ascribed
thereto in Rule 1-02 of Regulation S-X (17 CFR 210).
"Stock Purchase Agreement" shall have the meaning ascribed
thereto in the recitals.
"Stock Purchase Transaction Documents" shall have the meaning
ascribed thereto in the recitals.
"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.
"Supplemental Indenture" shall mean the Supplemental Indenture,
as contemplated by Section 3.02 of the Consent and Termination Agreement,
between the Company and First Trust of California, National Association.
8.2. Fees and Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such
costs or expense.
8.3. Public Announcements. The Investors and the Company shall
consult with each other before issuing any press release with respect to
this Agreement or the transactions contemplated hereby and neither shall
issue any such press release or make any such public statement without the
prior consent of the other, which consent shall not be unreasonably
withheld or delayed; provided, however, that a party may, without the prior
consent of the other party, issue such press release or make such public
statement as may upon the advice of counsel be required by Law or any
exchange on which the Company's securities are listed and, to the extent
time permits, it has used all reasonable efforts to consult with the other
party prior thereto.
8.4. Further Assurances. Subject to Section 4.6, at any time or
from time to time after the Closing, the Company, on the one hand, and the
Investors, on the other hand, agree to cooperate with each other, and at
the request of the other party, to execute and deliver any further
instruments or documents and to take all such further action as the other
party may reasonably request in order to evidence or effectuate the
consummation of the transactions contemplated hereby or by the Governance
Agreement or the Registration Rights Agreement and to otherwise carry out
the intent of the parties hereunder or thereunder.
8.5. Successors and Assigns. This Agreement shall bind and inure
to the benefit of the Company and the Investors and their respective
successors, permitted assigns, heirs and personal representatives, provided
that prior to the Closing the Company may not assign its rights or
obligations under this Agreement to any Person without the prior written
consent of the Investors, and provided further that the Investors may not
assign their rights or obligations under this Agreement to any Person
(other than an "Investor" (as defined in the Governance Agreement)) without
the prior written consent of the Company. In addition, and whether or not
any express assignment has been made, the provisions of this Agreement
which are for each Investor's benefit as purchaser and holder of Shares are
also for the benefit of, and enforceable by, any "Investor" (as defined in
the Governance Agreement).
8.6. Entire Agreement. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto including the Letter Agreement, dated September 15, 2000,
between GS Capital Partners 2000, L.P. and the Company, as amended prior to
the date hereof and the Confidentiality Agreement, dated June 19, 2000
between Xxxxxxx, Xxxxx & Co. and the Company.
8.7. 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:
(i) 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.
Vice President, General Counsel and Secretary
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.
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
(ii) if to the Investors, to:
c/o Goldman Xxxxx Capital Partners 2000, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxx
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).
8.8. Amendments. The terms and provisions of this Agreement may
be modified or amended, or any of the provisions hereof waived, temporarily
or permanently, in a writing executed and delivered by the Company and the
Investors. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof
(whether or not similar). No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof.
8.9. Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute
but one agreement.
8.10. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
8.11. Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.
8.12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
8.13. Submission to Jurisdiction. Each of the parties hereto
hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America, in each case located in the County of New York, for any
Litigation arising out of or relating to this Agreement or the other
Transaction Documents and the transactions contemplated hereby and thereby
(and agrees not to commence any Litigation relating hereto or thereto
except in such courts), and further agrees that service of any process,
summons, notice or document by U.S. registered mail to its respective
address set forth in this Agreement shall be effective service of process
for any Litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection
to the laying of venue of any Litigation arising out of this Agreement or
the transactions contemplated hereby in the courts of the State of New York
or the United States of America, in each case located in the County of New
York, hereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such Litigation brought in any
such court has been brought in an inconvenient forum.
8.14. WAIVER OF JURY TRIAL. THE COMPANY AND THE INVESTORS HEREBY
WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTION DOCUMENTS.
8.15. 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.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first above written.
HEXCEL CORPORATION
By:/s/ Xxxx X. Xxx
--------------------
Name: Xxxx X. Xxx
Title: Chairman and Chief Executive Officer
LXH, L.L.C.
By: GS Capital Partners 2000, L.P.,
its Managing Member
By: GS Advisors 2000, LLC, its general partner
By:/s/ Xxxxxxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Vice President
LXH II, L.L.C.
By: GS Capital Partners 2000 Offshore, L.P.,
its Managing Member
By: GS Advisors 2000, LLC, its general partner
By:/s/ Xxxxxxxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Vice President
