EXHIBIT 10.5
[EXECUTION COPY]
FOOTER B HAS BEEN ENTERED (DRAFT)
EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT made as of the 3rd day of February, 1999, between HEXCEL
CORPORATION, a Delaware corporation with offices at Stamford, Connecticut (the
"Company"), and Xxxx X. Xxx (the "Executive").
WHEREAS, the Company is engaged in the business of developing,
manufacturing and marketing carbon fibers, fabrics, high-performance composite
materials and parts therefrom for the commercial aerospace, space and defense,
recreation and industrial markets throughout the world, and hereafter may engage
in other areas of business (collectively, the "Business");
WHEREAS, the Executive, as a result of training, expertise and
personal application over the years, has acquired and will continue to acquire
considerable and unique expertise and knowledge which are of substantial value
to the Company in the conduct, management and operation of the Business;
WHEREAS, the Company is willing to provide the Executive with certain
benefits in the event of the termination of the Executive's employment with the
Company, including in the event of a Change in Control (as hereinafter defined);
and
WHEREAS, the Executive, in consideration of receiving such benefits
from the Company, is willing to afford certain protection to the Company in
regard to the confidentiality of its information, ownership of inventions and
competitive activities.
NOW, THEREFORE, in consideration of the mutual covenants of the
Executive and the Company and of the Executive's continued employment with the
Company, the parties agree as follows:
1. POSITION AND DUTIES. The Executive shall initially serve as
Chairman of the Board and Chief Executive Officer of the Company and shall
have such duties, responsibilities, and authority as he may have as of the
date hereof (or any position to which he may be promoted after the date
hereof). The Executive shall devote substantially all his working time and
efforts to the business and affairs of the Company.
2. PLACE OF PERFORMANCE. In connection with the Executive's
employment by the Company, the Executive shall be based at the principal
executive
offices of the Company in Stamford, Connecticut, except for required travel
on the Company's business.
3. TERMINATION. The Executive's employment hereunder may be
terminated under the following circumstances:
(a) DEATH. The Executive's employment hereunder shall
automatically terminate upon his death.
(b) DISABILITY. The Company may terminate the Executive's
employment hereunder due to the Executive's inability to perform the customary
duties of his employment by reason of any medical or psychological illness or
condition that is expected to be permanent or of indefinite duration, excluding
any such illness or condition that results from intentional self-inflicted
injury, alcoholism or drug abuse.
(c) CAUSE. The Company may terminate the Executive's employment
hereunder for Cause. The following shall constitute Cause:
(i) the willful and continued failure by the Executive to
substantially perform his duties with the Company (other than any such failure
resulting from the Executive's incapability due to physical or mental illness or
any such actual or anticipated failure after the issuance of a Notice of
Termination by the Executive for Good Reason) after demand for substantial
performance is delivered by the Company that specifically identifies the manner
in which the Company believes the Executive has not substantially performed his
duties; or
(ii) the willful engaging by the Executive in misconduct that
is demonstrably and materially injurious to the Company, monetarily or otherwise
including, but not limited to, conduct that violates the covenant not to compete
in Section 6 hereof. No act, or failure to act, on the Executive's part shall
be considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Company. Notwithstanding the foregoing, the Executive shall not
be deemed to have been terminated for Cause without (i) reasonable notice from
the Board to the Executive setting forth the reasons for the Company's intention
to terminate for Cause, (ii) delivery to the Executive of a resolution duly
adopted by the affirmative vote of two-thirds or more of the Board then in
office (excluding the Executive if he is then a member of the Board) at a
meeting of the Board called and held for such purpose, finding that in the good
faith opinion of the Board, the Executive was guilty of the conduct herein set
forth and specifying the particulars thereof in detail, (iii) an opportunity for
the Executive, together with his counsel, to be heard before the Board, and (iv)
delivery to the Executive of a Notice of Termination from the Board specifying
the particulars thereof in detail.
(d) GOOD REASON. The Executive may terminate his employment
hereunder for Good Reason. The following shall constitute Good Reason:
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(i) A diminution in the Executive's position, duties,
responsibilities or authority (except during periods when the Executive is
unable to perform all or substantially all of his duties or responsibilities on
account of illness (either physical or mental) or other incapacity);
(ii) A reduction in the Executive's annual rate of base salary
as in effect on the date hereof or as the same may be increased from time to
time;
(iii) Failure by the Company to continue in effect any
compensation plan in which the Executive participates which is material to the
Executive's total compensation, unless an equitable arrangement (embodied in an
ongoing substitute plan) has been made with respect to such plan, or failure by
the Company to continue the Executive's participation therein (or in such
substitute plan) on a basis not materially less favorable to the Executive;
(iv) Failure by the Company to continue to provide the
Executive with benefits substantially similar to those enjoyed by the Executive
under any of the Company's pension, savings, life insurance, medical, health and
accident, or disability plans in which the Executive was participating (except
for across-the-board changes similarly affecting all senior executives of the
Company and all senior executives of any Person in control of the Company), or
failure by the Company to continue to provide the Executive with the number of
paid vacation days per year equal to the greater of (i) five and (ii) the number
to which the Executive is entitled in accordance with the Company's vacation
policy;
(v) Failure to provide facilities or services which are
suitable to the Executive's position;
(vi) Failure of any successor (whether direct or indirect, by
purchase of stock or assets, merger, consolidation or otherwise) to the Company
to assume the Company's obligations hereunder or failure by the Company to
remain liable to the Executive hereunder after such assumption;
(vii) Any termination by the Company of the Executive's
employment which is not effected pursuant to a Notice of Termination satisfying
the requirements of a Notice of Termination contained in this Agreement;
(viii) The relocation of the Executive's principal place of
employment to a location more than fifty (50) miles from the Executive's
principal place of employment as at the date hereof; or
(ix) Failure to pay the Executive any portion of current or
deferred compensation within seven (7) days of the date such compensation is
due.
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The Executive's continued employment shall not constitute consent to, or waiver
of rights with respect to, any circumstance constituting Good Reason hereunder;
provided, however, that the Executive shall be deemed to have waived his rights
pursuant to circumstances constituting Good Reason hereunder if he shall not
have provided the Company a Notice of Termination within ninety (90) days
following his knowledge of the occurrence of circumstances constituting Good
Reason.
(e) OTHER THAN DEATH, DISABILITY, CAUSE OR GOOD REASON. (i) The
Company may terminate the Executive's employment, other than as provided in
Sections (3)(a), (b) or (c) hereof, upon written notice to the Executive and
(ii) the Executive may terminate his employment with the Company, other than as
provided in Section 3(d) hereof, upon written notice to the Company.
(f) NOTICE OF TERMINATION; DATE OF TERMINATION. Any termination
of the Executive's employment by the Company or by the Executive (other than a
termination pursuant to Section 3(a) hereof) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 10.
For purposes of this Agreement,
(i) "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated, and
(ii) "Date of Termination" shall mean (A) if the Executive's
employment is terminated pursuant to Section 3(a), the date of his death, (B) if
the Executive's employment is terminated pursuant to Section 3(b), thirty days
after Notice of Termination is given (provided that the Executive shall not have
returned substantially to full-time performance of the Executive's duties
during such thirty day period), (C) if the Executive's employment is terminated
pursuant to Sections 3(c), (d) or (e), the date specified in the Notice of
Termination (provided that such date shall not be more than thirty days from the
date Notice of Termination is given and, in the case of a termination for Cause,
shall not be less than fifteen days from the date Notice of Termination is
given), or (D) if the Executive terminates his employment and fails to provide
written notice to the Company of such termination, the date of such termination.
4. COMPENSATION UPON DEATH, DISABILITY OR TERMINATION.
Subject to section 15(b) hereof:
(a) If the Executive's employment is terminated by his death, the
Company shall pay the Executive's legal representative (i) at the time such
payments are due, the Executive's full base salary through the Date of
Termination at the rate in effect at the Date of Termination and all other
unpaid amounts, if any, to which the Executive is entitled as of the Date of
Termination including any reimbursable business expenses and amounts earned
under any compensation plan or program (including the
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Bonus Plan) and (ii) within ten days following the date of the Executive's
death, a lump sum payment in an amount equal to the sum of (A) the
Executive's annual base salary in effect as of the Date of Termination and
(B) the Executive's Average Annual Bonus (the term "Average Annual Bonus"
shall mean the average of the last three annual bonus amounts awarded to the
Executive under the Company's Management Incentive Compensation Plan, or any
successor, alternate or supplemental plan (the "Bonus Plan") or, if the
Executive has not participated in the Bonus Plan for three completed annual
award periods, the average of the annual bonus amounts awarded, provided that
any award made in respect of an annual award period in which the Executive
did not participate for the full period (the "Pro-Rata Award") shall be
annualized for purposes of computing the Average Bonus Amount by multiplying
the Pro-Rata Award by a fraction, of which the numerator is 365 and the
denominator is the number of days during which the Executive participated in
such annual award period).
(b) During any period that the Executive fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness the
Executive shall continue to receive his full base salary at the rate then in
effect for such period (offset by any payments to the Executive received
pursuant to disability benefit plans maintained by the Company) until his
employment is terminated pursuant to Section 3(b) hereof; and within ten days
following such termination, the Company shall pay the Executive (i) all unpaid
amounts, if any, to which the Executive is entitled as of the Date of
Termination including any reimbursable business expenses and amounts earned
under any compensation plan or program (including the Bonus Plan) and (ii) a
lump sum payment in an amount equal to the sum of (A) the Executive's annual
base salary in effect as of the Date of Termination and (B) the Executive's
Average Annual Bonus.
(c) If the Executive's employment is terminated by the Company for
Cause or by the Executive for other than Good Reason, the Company shall at the
time such payments are due pay the Executive his full base salary through the
Date of Termination at the rate in effect at the time Notice of Termination is
given and all other unpaid amounts, if any, to which the Executive is entitled
as of the Date of Termination including any reimbursable business expenses and
amounts earned under any compensation plan or program (including the Bonus
Plan), and the Company shall, thereafter, have no further obligations to the
Executive under this Agreement.
(d) If (1) the Company shall terminate the Executive's employment
other than for Disability and other than for Cause or (2) the Executive shall
terminate his employment for Good Reason, then
(i) the Company shall pay the Executive on the Date of
Termination, by wire transfer to the bank account designated by the Executive,
the Executive's full base salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given (disregarding any reduction in
salary rate which would constitute a Good Reason) and all other unpaid amounts,
if any, to which the Executive is entitled as of the Date of Termination
including any reimbursable business
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expenses and amounts earned under any compensation plan or program (including
the Bonus Plan);
(ii) in lieu of any further salary payments to the Executive
for periods subsequent to the Date of Termination, the Company shall pay to the
Executive on the Date of Termination, by wire transfer to the bank account
designated by the Executive, an amount equal to the product of (A) the sum of
(1) the Executive's annual base salary in effect at the time the Notice of
Termination is given (disregarding any reduction in salary rate which would
constitute a Good Reason) and (2) the Executive's Average Annual Bonus, and (B)
(x) if the Executive terminates his employment or the Company terminates the
Executive's employment, in either case within two years after the occurrence of
a Change in Control, the number three or (y) in any other case, the number one;
and
(iii) the Company shall continue the participation of the
Executive for a period of one year (except, if the Executive terminates his
employment or the Company terminates the Executive's employment, in either case
within two years after the occurrence of a Change in Control, such period shall
be three years), in all medical, health, life and other employee "welfare" plans
and programs in which the Executive participated immediately prior to the Date
of Termination, provided that the Executive's continued participation is
possible under the general terms and provisions of such plans and programs. In
the event that the Executive's participation in any such plan or program is
barred, the Company shall by other means provide the Executive with benefits
equivalent to those which the Executive would otherwise have been entitled to
receive under such plans and programs from which his continued participation is
barred.
(e) If the Company shall terminate the Executive's employment
other than for Cause, or the Executive shall terminate his employment for Good
Reason, during the period of a Potential Change in Control or at the request of
a person who, directly or indirectly, takes any action designed to cause a
Change in Control, then the Company shall make payments and provide benefits to
the Executive under this Agreement as though a Change in Control had occurred
immediately prior to such termination. A "Potential Change in Control" shall
exist during the period commencing at the time the Company enters into any
agreement or arrangement which, if consummated, would result in a Change in
Control and ending at the time such agreement or arrangement either (i) results
in a Change in Control or (ii) terminates, expires or otherwise becomes of no
further force or effect.
(f) For purposes of this Agreement, a "Change in Control" shall
mean the first to occur of the following events:
(1) (i) Any person (as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as modified
and used in Sections 13(d) and 14(d) of the Exchange Act, but excluding Ciba for
so long as Ciba is subject to the restrictions imposed by the Governance
Agreement) (a "Person")
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is or becomes the Beneficial Owner (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either (A) the then
outstanding Common Stock of the Company (the "Outstanding Common Stock") or
(B) the combined voting power of the then outstanding securities entitled to
vote generally in the election of directors of the Company (the "Total Voting
Power"); excluding, however, the following: (x) any acquisition by the
Company or any of its affiliates or (y) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
of its affiliates and (ii) Ciba Beneficially Owns, in the aggregate, a lesser
percentage of the Total Voting Power than such Person Beneficially Owns;
(2) A change in the composition of the Board such that the
individuals who, as of the effective date of this Agreement, constitute the
Board (such individuals shall be hereinafter referred to as the "Incumbent
Directors") cease for any reason to constitute at least a majority of the Board;
provided, however, for purposes of this definition, that any individual who
becomes a director subsequent to such effective date, whose election, or
nomination for election by the Company's stockholders, was made or approved
pursuant to the Governance Agreement or by a vote of at least a majority of the
Incumbent Directors (or directors whose election or nomination for election was
previously so approved) shall be considered a member of the Incumbent Board;
but, provided, further, that any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a person or legal entity other than the Board shall not be so
considered a member of the Incumbent Board;
(3) The effective date of a reorganization, merger or
consolidation by the Company, or the approval by the stockholders of the Company
of a sale or other disposition of all or substantially all of the assets of the
Company ("Corporate Transaction"); excluding, however, such a Corporate
Transaction (1) pursuant to which all or substantially all of the individuals
and entities who are the beneficial owners, respectively, of the Outstanding
Common Stock and Total Voting Power immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than 50%,
respectively, of the outstanding common stock and the combined voting power of
the then outstanding securities entitled to vote generally in the election of
directors of the company resulting from such Corporate Transaction (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Corporate Transaction, of the Outstanding
Common Stock and Total Voting Power, as the case may be, or (2) after which no
Person beneficially owns a greater percentage of the combined voting power of
the then outstanding securities entitled to vote generally in the election of
directors of such corporation than does Ciba;
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(4) Ciba shall become the Beneficial Owner of more than 57.5% of
the Total Voting Power; or
(5) The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
For purposes of this Section 4(f), the term "Ciba" shall mean Ciba
Specialty Chemicals Holding Inc., a Swiss corporation, together with it
affiliates holding Company voting securities pursuant to Section 4.01(b) of the
Governance Agreement, and the term "Governance Agreement" shall have the meaning
given in that certain Strategic Alliance Agreement among the Company, Ciba-Geigy
Limited and Ciba Geigy Corporation, dated as of September 29, 1995, as amended,
and any of their respective permitted successors or assigns thereunder.
(g) Notwithstanding any other provisions of this Agreement, in the
event that any payment, benefit, property or right received or to be received by
the Executive in connection with a Change in Control or the Executive's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company, any Person whose
actions result in a Change in Control or any Person affiliated with the Company
or such Person) (all such payments, benefits, properties and rights being
hereinafter referred to as the "Total Payments") would be subject (in whole or
part) to the tax (the "Excise Tax") imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended, or any successor provision (the "Code"), then
the payments and benefits provided under Section 4(d) or 4(e) hereof ("Severance
Payments") which are cash shall first be reduced, and the noncash Severance
Payments shall thereafter be reduced, to the extent necessary so that no portion
of the Total Payments is subject to the Excise Tax, but only if (A) the net
amount of such Total Payments, as so reduced (and after subtracting the net
amount of federal, state and local income taxes on such reduced Total Payments)
is greater than or equal to (B) the net amount of such Total Payments without
such reduction (but after subtracting the net amount of federal, state and local
income taxes on such Total Payments and the amount of Excise Tax to which the
Executive would be subject in respect of such unreduced Total Payments);
provided, however, that the Executive may elect (by waiving the receipt or
enjoyment of all or any portion of the noncash Severance Payments at such time
and in such manner that the Severance Payments so waived shall not constitute a
"payment" within the meaning of section 280G(b) of the Code) to have the noncash
Severance Payments reduced (or eliminated) prior to any reduction of the cash
Severance Payments. For purposes of determining whether and the extent to which
the Total Payments will be subject to the Excise Tax (i) no portion of the Total
Payments the receipt or enjoyment of which the Executive shall have waived at
such time and in such manner as not to constitute a "payment" within the meaning
of section 280G(b) of the Code shall be taken into account, (ii) no portion of
the Total Payments shall be taken into account which, in the written opinion of
tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected
by the accounting firm (the "Auditor") which was, immediately prior to the
Change in Control, the Company's independent auditor, does not constitute a
"parachute payment" within the meaning of
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section 280G(b)(2) of the Code (including by reason of section 280G(b)(4)(A)
of the Code) and, in calculating the Excise Tax, no portion of such Total
Payments shall be taken into account which, in the written opinion of Tax
Counsel, constitutes reasonable compensation for services actually rendered,
within the meaning of section 280G(b)(4)(B) of the Code, in excess of the
Base Amount allocable to such reasonable compensation, and (iii) the value of
any noncash benefit or any deferred payment or benefit included in the Total
Payments shall be determined by the Auditor in accordance with the principles
of sections 280G(d)(3) and (4) of the Code. At the time that payments are
made under this Agreement, the Company shall provide the Executive with a
written statement setting forth the manner in which such payments were
calculated and the basis for such calculations including, without limitation,
any opinions or other advice the Company has received from Tax Counsel, the
Auditor or other advisors or consultants (and all such opinions or advice
shall be in writing, shall be attached to the statement and shall expressly
state that the Executive may rely thereon). If the Executive objects to the
Company's calculations, the Company shall pay to the Executive such portion
of the Severance Payments (up to 100% thereof) as the Executive determines is
necessary to result in the proper application of the first sentence of this
Section 4(g). The Executive and the Company shall each reasonably cooperate
with the other in connection with any administrative or judicial proceedings
concerning the existence or amount of liability for Excise Tax with respect
to the Total Payments.
5. NO MITIGATION. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided for in
this Agreement be reduced by any compensation earned by the Executive as the
result of employment by another employer, by retirement benefits, by offset
against any amount claimed to be owed by the Executive to the Company, or
otherwise.
6. COVENANT NOT TO COMPETE. The Executive acknowledges that, as a
senior management employee, the Executive will be involved, on a high level, in
the development, implementation and management of the Company's global business
plans, including those which involve the Company's finances, research,
marketing, planning, operations, and acquisition strategies. By virtue of the
Executive's position and knowledge of the Company, the Executive acknowledges
that his employment by a competitor of the Company represents a serious
competitive danger to the Company, and that the use of the Executive's
experience and knowledge about the Company's business, strategies and plans by a
competitor can and would constitute a valuable competitive advantage over the
Company. In view of the foregoing, and in consideration of the payments made to
the Executive under this Agreement, the Executive covenants and agrees that, if
the Executive's employment is terminated and the Company has fulfilled its
obligations under this Agreement, for a period of one year (or three years if
the Executive receives the payments under clause (B)(x) of Section 4(d)(ii)
hereof) after the Date of Termination the Executive will not engage, in any
capacity, directly or indirectly, including but not limited as employee, agent,
consultant, manager, executive, owner or stockholder (except as a passive
investor holding less than a 5% equity interest in any enterprise) in any
business entity engaged in competition with the
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Business conducted by the Company on the Date of Termination anywhere in the
world; provided, that the Executive may be employed by a competitor of the
Company so long as the Executive's duties and responsibilities do not relate
directly or indirectly to the business segment of the new employer which is
actually or potentially competitive with the Business.
7. ASSIGNMENT OF INVENTIONS. The Executive agrees that all processes,
technologies, designs and inventions, including new contributions, improvements,
ideas and discoveries, whether patentable or not (collectively "Inventions"),
conceived, developed, invented or made by the Executive prior to the Date of
Termination shall belong to the Company, provided that such Inventions grew out
of the Executive's work with the Company or any of its subsidiaries or
affiliates, are related in any manner to the business (commercial or
experimental) of the Company or any of its subsidiaries or affiliates or are
conceived or made on the Company's time or with the use of the Company's
facilities or materials. At the request of the Company, the Executive shall (i)
promptly disclose such Inventions to the Company, (ii) assign to the Company,
without additional compensation, all patent and other rights to such Inventions
for the United States and foreign countries, (iii) sign all papers necessary to
carry out the foregoing, and (iv) give testimony or otherwise take action in
support of the Executive's status as the inventor of such Inventions, in each
case at the Company's expense.
8. CONFIDENTIALITY. In addition to any obligation regarding
Inventions, the Executive acknowledges that the trade secrets and confidential
and proprietary information of the Company, its subsidiaries and affiliates,
including without limitation:
(a) unpublished information concerning:
(i) research activities and plans,
(ii) marketing or sales plans,
(iii) pricing or pricing strategies,
(iv) operational techniques, and
(v) strategic plans;
(b) unpublished financial information, including information
concerning revenues, profits and profit margins;
(c) internal confidential manuals; and
(d) any "material inside information" as such phrase is used for
purposes of the Securities Exchange Act of 1934, as amended; all constitute
valuable, special and unique information of the Company, its subsidiaries and
affiliates. In recognition of this fact, the Executive agrees that the Executive
will not disclose any such trade secrets or confidential or proprietary
information (except (i) information which becomes publicly available without
violation of this Agreement, (ii) information of which the Executive, prior to
disclosure by the Executive, did not know and should not have known was
disclosed to the Executive by a third party in violation of any other person's
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confidentiality or fiduciary obligation, (iii) disclosure required in connection
with any legal process (provided the Executive promptly gives the Company
written notice of any legal process seeking to compel such disclosure and
reasonably cooperates in the Company's attempt to eliminate or limit the scope
of such disclosure) and (iv) disclosure while employed by the Company which the
Executive reasonably and in good faith believes to be in or not opposed to the
interests of the Company) to any person, firm, corporation, association or other
entity, for any reason or purpose whatsoever, nor shall the Executive make use
of any such information for the benefit of any person, firm, corporation or
other entity except on behalf of the Company, its subsidiaries and affiliates.
9. BINDING AGREEMENT. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he had continued to live, all
such amounts, unless otherwise provided in this Agreement, shall be paid to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
10. NOTICE. Notices, 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, if delivered personally, or mailed by United States
certified or registered mail, return receipt requested, postage prepaid, and
when received if delivered otherwise, addressed as follows:
If to the Executive:
Xxxx X. Xxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Company:
Hexcel Corporation
000 Xxxxxxx Xxxx.
Xxxxxxxx, XX 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.
11. 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 (or, if applicable, his legal
representative) and the
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Company. 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 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 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 Connecticut without regard to its
conflicts of law principles.
12. VALIDITY AND ENFORCEABILITY. The invalidity or unenforceability
of any provision 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. It is the desire and intent of the parties that the
provisions of Sections 6, 7 and 8 hereof shall be enforceable to the fullest
extent permitted by applicable law or public policy. If any such provision or
the application thereof to any person or circumstance shall, to any extent, be
construed to be invalid or unenforceable in whole or in part, then such
provision shall be construed in a manner so as to permit its enforceability to
the fullest extent permitted by applicable law or public policy. In any case,
the remaining provisions or the application thereof to any person or
circumstance other than those to which they have been held invalid or
unenforceable, shall remain in full force and effect.
13. 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.
14. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators in the State of Connecticut, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Company shall be entitled to seek a
restraining order or injunction in any court of competent jurisdiction to
prevent any continuation of any violation of the provisions of Sections 6, 7 or
8 hereof.
15. EXISTING EMPLOYMENT AGREEMENT. The Company and the Executive have
previously entered into an Employment Agreement dated February 29, 1996 (the
"Employment Agreement"). The Company and the Executive intend that the
Executive's entitlement to severance payments in lieu of salary and bonus upon a
Change in Control shall be governed solely by this Agreement, and that payments
under this Agreement in respect of other benefits shall be reduced by any
amounts received by the Executive under the Employment Agreement for similar
benefits. Accordingly, the Company and the Executive agree as follows:
(a) In Clause B of Section 8(d) of the Employment Agreement, the
phrase
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"(B) the Executive shall terminate his
employment for Good Reason, then"
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shall be amended to read
"(B) the Executive shall terminate his
employment for Good Reason (but for
the purpose of this Section 8(d), the
term Good Reason shall not include
any reference to change in control as
set forth in Section 7(d)(ii)(C) hereof),
then".
Except as expressly amended by this Section 15(a), the Employment Agreement
shall remain in full force and effect as originally written.
(b) Payments in respect of the following benefits under this
Agreement shall be reduced (but to not less than zero) as follows:
(A) Payments under Section 4(a) hereof shall be reduced by
payments received under Section 8(b) of the Employment Agreement;
(B) Payments under Section 4(b) hereof shall be reduced by
payments received under Section 8(a) of the Employment Agreement;
(C) Payments under Section 4(c) hereof shall be reduced by
payments received under Section 8(c) of the Employment Agreement; and
(D) Payments under Sections 4(d)(i) and (ii) hereof shall
be reduced by payments received under Sections 8(d)(i) and (ii) of the
Employment Agreement.
16. REMEDIES. The Executive agrees that in addition to any other
remedy provided at law or in equity or in this Agreement, the Company shall be
entitled to a temporary restraining order and both preliminary and permanent
injunctions restraining Executive from violating any provision of Sections 6, 7
and 8 hereof. In the event the Company fails to make any payment to the
Executive when due, the Executive, in addition to any other remedy available at
law or in equity, shall be entitled to interest on such unpaid amounts from the
date such payment was due to the date actual payment is received by the
Executive, at the legal rate applicable to unpaid judgments. The Company shall
pay to the Executive all legal, audit, and actuarial fees and expenses as a
result of the termination of employment, including all such fees and expenses
incurred in contesting, arbitrating or disputing any action or failure to act by
the Company or in seeking to obtain or enforce any right under this Agreement or
any other plan, arrangement or agreement with the Company, provided that the
Executive has obtained a final determination supporting at least part of his
claim and there has been no determination that the balance of his claim was made
in bad faith.
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17. CONSENT TO JURISDICTION AND FORUM. The Executive hereby expressly
and irrevocably agrees that any action, whether at law or in equity, permitted
to be brought by the Company under this Agreement may be brought in the State of
Connecticut or in any federal court therein. The Executive hereby irrevocably
consents to personal jurisdiction in such court and to accept service of process
in accordance with the provisions of the laws of the State of Connecticut. In
the event the Company commences any such action in the State of Connecticut or
in any Federal court therein, the Company shall reimburse the Executive for the
reasonable expenses incurred by the Executive in his appearance in such forum
which are in addition to the expenses the Executive would have incurred by
appearing in the forum of the Executive's residence at that time, including but
not limited to additional legal fees.
HEXCEL CORPORATION
By: __________________________________
Name:
Title:
__________________________________
Xxxx X. Xxx
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