SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )
Hexcel Corporation
(Name of Issuer)
New Common Stock, par value $0.01 per share
(Title of Class of Securities)
none
(CUSIP Number)
MICHAEL F. PRICE
HEINE SECURITIES CORPORATION
51 JOHN F. KENNEDY PARKWAY
SHORT HILLS, NJ 07078
(201) 912-2152
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 27, 1994
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject
of this Schedule 13D, and is filing this schedule because
of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this
statement [X]. (A fee is not required only if the filing
person: (1) has a previous statement on file reporting
beneficial ownership of more than five percent of the
class of securities described in Item 1; and (2) has filed
no amendment subsequent thereto reporting beneficial
ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for
other parties to whom copies should be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect
to the subject class of securities, and for any subsequent
amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required in the remainder of this cover page
shall not be deemed to be "filed" for the purpose of section
18 of the Securities Exchange Act of 1934 ("Act") or
otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act
(however, see the Notes).
(Continued on the following page(s))
Page 1 of pages
<PAGE>
CUSIP No. 13D Page 2 of Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Heine Securities Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
Not Applicable (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF, WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF INCORPORATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES (See Item 5)
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY None
EACH 9 SOLE DISPOSITIVE POWER
REPORTING (See Item 5)
PERSON 10 SHARED DISPOSITIVE POWER
WITH None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.775% (See Item 5)
14 TYPE OF REPORTING PERSON*
IA
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 13D Page 3 of Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Michael F. Price
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
Not Applicable (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS
2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF INCORPORATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES None (See Items 2 and 5)
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY None
EACH 9 SOLE DISPOSITIVE POWER
REPORTING None (See Items 2 and 5)
PERSON 10 SHARED DISPOSITIVE POWER
WITH None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
None (See Items 2 and 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* /X/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
Item 1. Security and Issuer
Hexcel Corporation, a Delaware corporation (the "Issuer"),
is currently a debtor in possession under chapter 11 of
title 11 of the United States Code, as amended (the
"Bankruptcy Code") (In re Hexcel Corporation, Case No.
93-48535-T, United States Bankruptcy Court, Northern
District of California). The Issuer filed a proposed Plan
of Reorganization Under Chapter 11 of the Bankruptcy Code
("Plan of Reorganization") on July 27, 1994 pursuant to
which, the Issuer would, among other things, issue New
Common Stock, par value $.01 per share (the "New Common")
upon confirmation by the Bankruptcy Court of its Plan of
Reorganization and the satisfaction of certain conditions
as specified therein. The class of equity securities to
which this Statement relates is the New Common. The
Issuer's principal executive offices are located at 5794
West Las Positas Boulevard, Pleasanton, California 94588-
8781.
Item 2. Identity and Background
(a-c) This Statement is being filed by Heine Securities
Corporation ("HSC"), a Delaware corporation, whose
principal and executive offices are located at 51 John F.
Kennedy Parkway, Short Hills, New Jersey 07078. HSC is an
investment adviser registered with the U.S. Securities and
Exchange Commission ("SEC") under the Investment Advisers
Act of 1940, as amended. Mutual Series Fund Inc. ("Mutual
Series"), an investment company registered with the SEC
under the Investment Company Act of 1940, as amended, is
one of HSC's advisory clients. Three of the series
comprising Mutual Series, Mutual Shares Fund, Mutual
Qualified Fund and Mutual Beacon Fund, will be the legal
owner of the securities covered by this statement. Pursuant
to investment advisory agreements with each of its advisory
clients, including Mutual Series, HSC has sole investment
discretion and voting authority with respect to such
securities.
This Statement is also being filed by Michael F. Price.
Michael F. Price is President of HSC, in which capacity he
exercises voting control and dispositive power over the
securities reported herein by HSC. Mr. Price, therefore,
may be deemed to have indirect beneficial ownership over
such securities. Neither Mr. Price nor HSC has any interest
in dividends or proceeds from the sale of such securities,
owns no shares for their own account and disclaims
beneficial ownership of all securities reported herein.
The name, residence or business address, and the principal
occupation or employment and the name, principal business
and address of any corporation or other organization in
which such employment is conducted, of each executive
officer and director and each controlling person, if any,
of HSC is set forth in Exhibit A hereto. Exhibit A also
lists the names of each executive officer of Mutual Series.
(d-e) During the last five years, neither HSC nor, to the
best of HSC's knowledge, any person listed in Exhibit A
attached hereto (i) has been convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors) or (ii) has been a party to a civil
proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such
proceeding was or is subject to, a judgment, decree or
final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state
securities laws or finding any violation with respect to
such laws.
(f) To the best of HSC's knowledge, each of the individuals
listed on Exhibit A attached hereto is a citizen of the
United States.
Item 3. Source and Amount of Funds or Other Consideration
The securities reported herein are to be acquired with funds
of approximately $23,000,000. Under certain circumstances,
as described below, Mutual Series may be required to expend
up to approximately $50,000,000 depending upon the number of
shares Mutual Series is required to purchase pursuant to the
Subscription Agreement referred to below. All such funds
will be provided from working capital of Mutual Series.
Item 4. Purpose of Transaction
Mutual Series and the Issuer have entered into a Stock
Subscription and Standby Purchase Agreement dated as of July
27, 1994 (the "Subscription Agreement"). The Subscription
Agreement is incorporated herein by reference to the copy
attached as Exhibit B hereto. The following description of
certain provisions of the Subscription Agreement is
qualified in its entirety by reference to the full text of
the Subscription Agreement.
As described more fully in the Subscription Agreement and
in the Issuer's Plan of Reorganization, a copy of which was
filed on July 27, 1994 with the Bankruptcy Court, Mutual
Series has agreed to purchase, subject to the satisfaction
of certain conditions, 32.775% of the fully diluted New
Common (assuming the holders of the Issuer's 7% Convertible
Subordinated Debentures (the "Debentures") accept the Plan
of Reorganization and receive shares of New Common in
exchange for the Debentures) proposed to be issued by the
Issuer in connection with its Plan of Reorganization and the
Subscription Agreement, for an aggregate purchase price of
$23,000,000. The number of shares Mutual Series is required
to purchase is subject to increase depending upon the number
of shares of New Common acquired by holders of the Issuer's
currently issued and outstanding shares of common stock
("Current Stockholders") in the rights offering ("Rights
Offering") contemplated by the Plan of Reorganization, in
respect of which Mutual Series has agreed to act as standby
purchaser. In the event that no shares of New Common are
acquired by Current Stockholders in the Rights Offering,
Mutual Series would be required, pursuant to the
Subscription Agreement, to acquire up to an additional
approximately 24.225% of the fully diluted New Common,
(assuming the holders of the Debentures accept the Plan of
Reorganization and receive shares of New Common in exchange
for the Debentures) for an additional aggregate price of up
to $17,000,000. In addition, if the holders of the
Debentures do not accept the Plan of Reorganization and do
not receive shares of New Common in exchange for the
Debentures, Mutual Series would acquire aproximately
41.13917% of the New Common for $25,000,0000 and would be
obligated to purchase up to an additional 41.13917% as
standby purchaser in the Rights Offering for up to an
additional $25,000,000. The fully diluted New Common does
not include management options and investments.
The securities covered by this Statement would be acquired
by Mutual Series for the purpose of investment.
As stated, there are a number of conditions precedent to
Mutual Series' obligation to purchase the New Common, each
of which is set forth in the Subscription Agreement. Among
these are conditions requiring confirmation of the Plan of
Reorganization, the Issuer's receipt of working capital
financing, the election of five directors designated by
Mutual Series to the board of the reorganized Issuer (which
will consist of nine directors, and which is subject to the
requirement that one of the Mutual Series designees resign
in the event that the aggregate purchase price of the New
Common which Mutual Series is required to purchase pursuant
to the Subscription Agreement is less than certain amounts
specified in the Subscription Agreement), the entering into
by the Issuer of an employment agreement with its chief
executive officer, and the execution of an agreement
(substantially in the form of the Registration Rights
Agreement which comprises Exhibit V of the Subscription
Agreement and which is attached hereto as Exhibit C),
wherein the Issuer agrees to effect the registration of
shares of New Common received by Mutual Series pursuant to
the Subscription Agreement for public sale under the
Securities Act of 1933, as amended, in the situations
referred to therein. In addition, certain events described
in the Subscription Agreement provide for the termination of
Mutual Series' commitment and the payment by the Issuer of a
break-up fee equal to $1,250,000 to Mutual Series.
In the future, HSC may decide to have Mutual Series or its
other advisory clients purchase additional shares of New
Common or other securities of the Issuer. In addition, HSC
may cause Mutual Series or its other advisory clients to
dispose of any or all securities of the Issuer in any manner
permitted by applicable securities laws.
Except as set forth above and in the Subscription Agreement,
neither HSC nor, to the best of HSC's knowledge, any
executive officer or director of HSC or Mutual Series, has
any present plans or intentions which would result in or
relate to any of the transactions described in subparagraphs
(a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer
(a-b) As the holder of sole voting and investment power
over the securities owned by its advisory clients, HSC
(and therefore Mr. Price) may be deemed to be, for purposes
of Rule 13d-3 under the Securities Exchange Act of 1934, the
beneficial owner of all shares of New Common which Mutual
Series may receive pursuant to the Subscription Agreement.
As described in the Subscription Agreement, the exact number
of shares which Mutual Series may purchase is not known at
present, but such shares would represent between 32.775% and
82.27834% of the fully diluted number of New Common
outstanding. HSC would have the sole power to vote or direct
to vote, and the sole power to dispose or to direct the
disposition of any shares of New Common which Mutual Series
may purchase pursuant to the Subscription Agreement.
However, HSC and Mr. Price disclaim any economic interest or
beneficial ownership in any shares of the New Common Stock
covered by this Statement.
(c) Neither HSC, Mr. Price, any of HSC's advisory clients,
nor, to the best of HSC's knowledge, any person identified
in Exhibit A, beneficially owns any securities of the
Issuer, or has entered into any transactions in the shares
of any securities of the Issuer, including the New Common,
within the past sixty days, other than the securities which
are the subject of the Subscription Agreement.
(d) No person other than Mutual Series has the right to
receive or the power to direct the receipt of dividends
from, or the proceeds of the sale of the New Common which is
the subject of the Subscription Agreement.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer
Except as set forth above, neither HSC, Mutual Series, or,
to the best of HSC's knowledge, any of the persons named in
Exhibit A hereto, has any contract, arrangement,
understanding or relationship (legal or otherwise) with any
person with respect to any securities of the Issuer,
including, but not limited to, transfer or voting of any
securities, finders' fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division
of profits or losses, or the giving or withholding of
proxies.
Item 7. Material To Be Filed As Exhibits
Exhibit A Executive Officers and Directors of HSC
and Executive Officers of Mutual Series
Exhibit B Subscription Agreement (exhibits
omitted)
Exhibit C Form of Registration Rights Agreement
Exhibit D Joint Filing Agreement
<PAGE>
Signatures
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Date: August 8, 1994
/s/ Michael F. Price
President
Heine Securities Corporation
/s/ Michael F. Price
<PAGE>
EXHIBIT A
EXECUTIVE OFFICERS AND DIRECTORS
OF HEINE SECURITIES CORPORATION
Name/Title/ Principal Business
Citizenship Occupation Address
Michael F. Price President, COO and 51 J.F.K. Pkwy
President/COO/ Director of HSC; Short Hills, NJ
Director President and 07078
(U.S.) Chairman of Mutual
Series Fund Inc.
Edward J. Bradley CFO and Treasurer, 51 J.F.K. Pkwy
Treasurer and HSC and Mutual Short Hills, NJ
CFO Series Fund Inc. 07078
(U.S.)
E. N. Cohernour Sec'y/Gen. Counsel, 51 J.F.K. Pkwy
Secretary HSC and Mutual Short Hills, NJ
(U.S.) Series Fund Inc. 07078
ADDITIONAL EXECUTIVE OFFICERS
OF MUTUAL SERIES FUND INC.
Peter A. Langerman Financial Analyst, 51 J.F.K. Pkwy
Executive Vice HSC Short Hills, NJ
President 07078
(U.S.)
Lawrence Sondike Financial Analyst, 51 J.F.K. Pkwy
Vice President HSC Short Hills, NJ
(U.S.) 07078
<PAGE>
EXHIBIT B
STOCK SUBSCRIPTION AND STANDBY PURCHASE AGREEMENT
BETWEEN
HEXCEL CORPORATION
AND
MUTUAL SERIES FUND INC.
Dated as of July 27, 1994
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
SALE OF SHARES; PURCHASE PRICE 2
1.1 Sale of Shares 2
1.2 Purchase Price; Payment 2
1.3 Closing 3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF HEXCEL 4
2.1 Organization and Good Standing 4
2.2 Authorization of Agreement 4
2.3 Authorization and Validity of Shares 5
2.4 Capitalization 5
2.5 Financial Statements 6
2.6 No Undisclosed Liabilities 6
2.7 Absence of Certain Developments 7
2.8 SEC Documents 7
2.9 Taxes 8
2.10 Title to Assets 9
2.11 Intellectual Property 9
2.12 Material Contracts 10
2.13 Employee Benefits 10
2.14 Litigation 12
2.15 Environmental Matters 12
2.16 Disclosure Statement 13
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER 14
3.1 Organization and Good Standing 14
3.2 Authorization of Agreement 14
3.3 Consents of Third Parties 14
3.4 Investment Intention 15
3.5 Financial Advisors 15
3.6 SEC Documents 15
ARTICLE IV
FURTHER AGREEMENTS OF THE PARTIES 16
4.1 Access to Information 16
4.2 Filings with Governmental Bodies; Certain Negotiations
16
4.3 Updating of Information 17
4.4 Periodic Financial Statements 17
ARTICLE V
BANKRUPTCY MATTERS 18
5.1 Motion by Hexcel 18
5.2 Plan and Disclosure Statement; Disclosure Statement
Order 18
5.3 Confirmation Order 18
5.4 Certain Bankruptcy Undertakings by Hexcel 19
ARTICLE VI
TERMINATION; BREAK-UP FEE 19
6.1 Termination 19
6.2 No Solicitation; Break-up Fee. 22
6.3 Effect of Termination 24
6.4 Expense Reimbursement 24
ARTICLE VII
CONDITIONS TO CLOSING 25
7.1 Conditions Precedent to Obligations of Purchaser 25
7.2 Conditions Precedent to Obligations of Hexcel to First
Closing 28
7.3 Conditions Precedent to Obligations of Purchaser to
Second Closing 30
7.4 Conditions Precedent to Obligations of Hexcel to Second
Closing 30
ARTICLE VIII
DOCUMENTS TO BE DELIVERED AT THE CLOSINGS 31
8.2 Documents to Be Delivered by Purchaser at the First
Closing 32
8.3 Documents to Be Delivered by Hexcel at the Second
Closing 33
8.4 Documents to Be Delivered by Purchaser at the Second
Closing 34
8.5 Resignation of Designee 35
ARTICLE IX
INDEMNIFICATION AND RELATED MATTERS 35
9.1 Indemnification 35
9.2 Liquidated Damages 36
9.3 Financial Advisors 36
ARTICLE X
MISCELLANEOUS 36
10.1 Survival of Representations and Warranties 36
10.2 Certain Definitions 37
10.3 Further Assurances 45
10.4 Restrictive Legend 45
10.5 Entire Agreement; Amendments and Waivers 45
10.6 Governing Law 46
10.7 Table of Contents and Headings 46
10.8 Notices 46
10.9 Knowledge 47
10.10 Severability 47
10.11 Binding Effect; Assignment 47
10.12 No Third Party Beneficiary 48
10.13 Amendments to Plan and Disclosure Statement. 48
<PAGE>
EXHIBITS
Exhibit I - Opinion of Hexcel's Counsel For First Closing
Exhibit II - Opinion of Purchaser's Counsel For First
Closing
Exhibit III - Opinion of Hexcel's Counsel For Second
Closing
Exhibit IV - Opinion of Purchaser's Counsel For
Second Closing
Exhibit V - Registration Rights Agreement
Exhibit VI - Terms of Employment for John J. Lee
Exhibit VII - Officers with Contingency Employment
Agreements
SCHEDULES
Schedule 2.9(a) - Tax Filings
Schedule 2.9(b) - Tax Payments
Schedule 2.9(c) - Payment and Withholding of Value
Added Taxes
Schedule 2.9(f)(ii) - Change in Accounting Method
Schedule 2.13(a) - Employee Benefit Plans
Schedule 2.13(b) - Multiple Employer Plan
Schedule 2.13(e) - Amendments to Employee Benefit
Plans
Schedule 2.14 - Litigation
<PAGE>
STOCK SUBSCRIPTION AND STANDBY PURCHASE AGREEMENT
This STOCK SUBSCRIPTION AND STANDBY PURCHASE
AGREEMENT, dated as of July 27, 1994 (this "Agreement"), is
between Hexcel Corporation, a Delaware corporation, in its
capacities as debtor and debtor in possession (together with
its successors and assigns, "Hexcel"), and Mutual Series
Fund Inc., a Maryland corporation ("Purchaser"). Capitalized
terms used in this Agreement are defined in Section 10.2 or
as indicated therein. All section references herein are to
sections of this Agreement unless otherwise indicated.
W I T N E S S E T H :
WHEREAS, Hexcel is a debtor and debtor in
possession under chapter 11 of title 11 of the United States
Code, as amended (the "Bankruptcy Code"), having filed a
voluntary petition for relief (filed as Case No. 93-48535 T
and entitled In re Hexcel Corporation) (the "Case") on
December 6, 1993 in the United States Bankruptcy Court for
the Northern District of California (the "Bankruptcy
Court"); and
WHEREAS, Hexcel intends to file the Plan in the
Bankruptcy Court on July 27, 1994; and
WHEREAS, pursuant to the Plan, Hexcel will, inter
alia, issue to the holders of shares of Old Common Stock
transferable rights to subscribe for and purchase (the
"Rights Offering") an aggregate number of shares of New
Common Stock (the "Offered Shares") (rounded to the nearest
whole share for each holder) as equals, if Class 9 under the
Plan accepts the Plan in accordance with the provisions of
section 1126 of the Bankruptcy Code, approximately 24.225%
of the Fully Diluted New Shares at an aggregate purchase
price of approximately $17,000,000 and, if Class 9 under the
Plan does not accept the Plan in accordance with the
provisions of section 1126 of the Bankruptcy Code,
approximately 41.13917% of the Fully Diluted New Shares at
an aggregate Purchase Price of approximately $25,000,000;
and
WHEREAS, in connection with, and as part of, the
Rights Offering, Purchaser is entering into this Agreement
(a) to participate as the standby purchaser for the Offered
Shares not purchased through the Rights Offering (the
"Unpurchased Shares"), and (b) to purchase certain
additional shares of New Common Stock, on the terms and
subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual representations, warranties,
covenants and agreements hereinafter contained, and other
good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
SALE OF SHARES; PURCHASE PRICE
1.1 Sale of Shares. On the terms and subject to
the conditions set forth in this Agreement, Purchaser hereby
subscribes for and agrees to purchase, and Hexcel agrees to
issue, sell and deliver to Purchaser, (a) if Class 9 under
the Plan accepts the Plan in accordance with section 1126 of
the Bankruptcy Code, (i) on the First Closing Date, that
number of shares of New Common Stock (rounded to the nearest
whole share) as equals 32.775% of the number of Fully
Diluted New Shares (the "Initial Shares") at an aggregate
purchase price of $23,000,000 (the "Purchase Price"), and
(ii) on the Second Closing Date, the Unpurchased Shares at
an aggregate purchase price equal to the difference between
$17,000,000 and the aggregate purchase price for the shares
of New Common Stock purchased in the Rights Offering (the
"Standby Purchase Price") and (b) if Class 9 under the Plan
does not accept the Plan in accordance with section 1126 of
the Bankruptcy Code (i) on the First Closing Date, that
number of shares of New Common Stock (rounded to the nearest
whole share) as equals 41.13917% of the number of Fully
Diluted New Shares (also the "Initial Shares") at an
aggregate purchase price of $25,000,000 (also the "Purchase
Price") and (ii) on the Second Closing Date, the Unpurchased
Shares at an aggregate purchase price equal to the
difference between $25,000,000 and the aggregate purchase
price for the shares of New Common Stock purchased in the
Rights Offering (also the "Standby Purchase Price").
1.2 Purchase Price; Payment. On the terms and
subject to the conditions set forth in this Agreement, (a)
at the First Closing, Purchaser shall pay to Hexcel, in
consideration for receiving from Hexcel at the First Closing
certificates representing the Initial Shares, the Purchase
Price by delivery of immediately available funds to a single
bank account which Hexcel shall designate in writing to
Purchaser not less than five business days prior to the
First Closing Date, and (b) at the Second Closing, Purchaser
shall pay to Hexcel, in consideration for receiving from
Hexcel at the Second Closing certificates representing the
Unpurchased Shares, the Standby Purchase Price by delivery
of immediately available funds to a single bank account
which Hexcel shall designate in writing to Purchaser not
less than five business days prior to the Second Closing
Date.
1.3 Closing.
(a) The closing of the sale and purchase of
the Initial Shares (the "First Closing") shall take place at
10:00 a.m. at the offices of Weil, Gotshal & Manges in New
York, New York (or at such other place as the parties may
designate in writing) no later than the fifth business day
following the date on which each of the conditions specified
in Sections 7.1(u) and 7.2(f) has been fulfilled, subject to
satisfaction of the other conditions specified in Sections
7.1 and 7.2 (or waiver by the party entitled to waive that
condition). The date on which the First Closing is held is
referred to in this Agreement as the "First Closing Date".
At the First Closing, the parties shall execute and deliver
the documents referred to in Sections 8.1 and 8.2.
(b) The closing of the sale and purchase of
the Unpurchased Shares provided above (the "Second Closing")
shall take place at 10:00 a.m. at the offices of Weil,
Gotshal & Manges in New York, New York (or at such other
place as the parties may designate in writing) no later than
the tenth business day following the date on which each of
the conditions specified in Sections 7.3(a) and 7.4(a) has
been fulfilled, subject to satisfaction of the other
conditions specified in Sections 7.3 and 7.4 (or waiver by
the party entitled to waive that condition). The date on
which the Second Closing is held is referred to in this
Agreement as the "Second Closing Date". At the Second
Closing, the parties shall execute and deliver the documents
referred to in Sections 8.3 and 8.4.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF HEXCEL
Hexcel hereby represents and warrants to Purchaser
that:
2.1 Organization and Good Standing. Hexcel is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has
all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as
now conducted and as it is proposed to be conducted.
2.2 Authorization of Agreement.
(a) Subject to requisite Bankruptcy Court
approval, (i) Hexcel has all requisite corporate power and
authority to execute and deliver this Agreement and the
Registration Rights Agreement and to consummate the
transactions contemplated hereby and thereby, and to perform
fully its obligations hereunder and thereunder, (ii) the
execution, delivery and performance by Hexcel of this
Agreement and the Registration Rights Agreement and the
consummation by Hexcel of the transactions contemplated
hereby and thereby have been duly authorized by all
necessary corporate action on the part of Hexcel and (iii)
this Agreement has been, and the Registration Rights
Agreement will be at or prior to the First Closing, duly
executed and delivered by Hexcel and (assuming the due
authorization, execution and delivery by Purchaser) this
Agreement constitutes, and the Registration Rights Agreement
when so executed and delivered will constitute, legal, valid
and binding obligations of Hexcel, enforceable against
Hexcel in accordance with their respective terms.
(b) The execution and delivery by Hexcel of
this Agreement does not and, on the First Closing Date, the
execution and delivery of the Registration Rights Agreement
and the consummation of the transactions contemplated hereby
or thereby by Hexcel will not (i) conflict with or result in
a breach or violation of any of the terms of the certificate
of incorporation or by-laws or other corporate governance
documents of Hexcel or any of its Material Subsidiaries as
then in effect, (ii) require any consent, approval, waiver,
permit, order or authorization of, or registration,
declaration, notification or filing with, any federal,
state, local or foreign governmental, judicial or regulatory
authority other than (A) as required by the Bankruptcy Code,
the Federal Rules of Bankruptcy Procedure from time to time
promulgated in connection therewith (the "Bankruptcy Rules")
and the orders of the Bankruptcy Court, (B) the requirements
of the HSR Act, (C) the requirements of the Exchange Act,
and (D) as may be required under ISRA and ECRA to the extent
Hexcel owns property in New Jersey, (iii) result in a breach
of, constitute a default under, give rise to any right of
termination, amendment, cancellation or acceleration of any
obligation under, or result in the creation of any Lien
under, any Contract or other obligation to which Hexcel or
any of the Material Subsidiaries is a party or by which any
of their respective assets may be bound, other than with
respect to those Contracts that will no longer be in effect
upon consummation of the Plan and other than for rights of
termination under certain non-material leases and Hexcel's
director's and officer's liability policy, or (iv) violate
any order, writ, injunction, decree, statute, rule or
regulation applicable to Hexcel or any of its Material
Subsidiaries or any of their respective assets.
2.3 Authorization and Validity of Shares. On the
First Closing Date, the Initial Shares will have been duly
authorized, and when issued and delivered as provided in
this Agreement will be validly issued and outstanding, fully
paid and nonassessable and free of any preemptive rights.
2.4 Capitalization. On the First Closing Date,
the authorized capital stock of Hexcel will be 60,000,000
shares of New Common Stock and 1,500,000 shares of preferred
stock, no shares of either of which classes will be issued
or reserved for issuance except (i) to Purchaser pursuant to
this Agreement, (ii) to holders of claims in Classes 6, 9,
10 and 11 pursuant to the Plan, (iii) up to 7% of Fully
Diluted New Shares to employees pursuant to Hexcel's New
Long Term Incentive Plan and/or John Lee's new employment
agreement, as disclosed in the Disclosure Statement and (iv)
to management pursuant to an investment disclosed in the
Disclosure Statement. Other than as disclosed in the
Disclosure Statement, on the First Closing Date, there will
be no option, warrant, call, right, commitment or other
agreement of any character to which Hexcel is a party
requiring, and there will be no securities of Hexcel
outstanding on the First Closing Date which upon conversion
or exchange would require, the issuance, sale or transfer of
any shares of capital stock or other equity securities of
Hexcel or other securities convertible into, exchangeable
for or evidencing the right to subscribe for or purchase
shares of capital stock or other equity securities of Hexcel
other than, if Class 9 under the Plan does not accept the
Plan in accordance with section 1126 of the Bankruptcy Code,
pursuant to the conversion rights of Hexcel's Subordinated
Debentures (as defined in the Plan). Neither Hexcel nor any
of the Subsidiaries will be, on the First Closing Date, a
party to any voting trust or other voting agreement (other
than in connection with director's qualifying shares) with
respect to any of its capital stock or to any agreement
relating to the redemption or repurchase of any shares of
the capital stock of Hexcel or any Subsidiary (other than in
connection with director's qualifying shares) or any
registration rights agreement (other than the Registration
Rights Agreement).
2.5 Financial Statements. Hexcel has delivered
to Purchaser a copy of the (a) audited consolidated balance
sheets of Hexcel and the Subsidiaries as at December 31,
1993 and December 31, 1992 and the related audited
consolidated statements of income and of cash flows for the
years then ended and (b) unaudited consolidated balance
sheet of Hexcel and the Subsidiaries as at April 3, 1994 and
the related consolidated statements of income and cash flows
for the period then ended (such audited and unaudited
statements, including the related notes and schedules
thereto, are referred to herein as the "Financial
Statements"). Each of the Financial Statements is complete
and correct in all material respects, has been prepared in
accordance with generally accepted accounting principles and
presents fairly the consolidated financial position, results
of operations and cash flows of Hexcel and the Subsidiaries
as at the dates and for the periods indicated.
The unaudited consolidated balance sheet of Hexcel
and the Subsidiaries as at April 3, 1994 and as set forth in
Hexcel's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 3, 1994 is referred to as the "Balance
Sheet" and April 3, 1994 is referred to as the "Balance
Sheet Date".
2.6 No Undisclosed Liabilities. Hexcel and the
Subsidiaries have no known obligation or liability of any
kind (whether accrued, absolute, contingent or otherwise,
whether arising under Law or by contract or tort, and
whether due or to become due) other than those (a) fully
reflected in, reserved against or otherwise described in the
Balance Sheet or the notes thereto, (b) described in the
other Disclosure Documents, (c) set forth or disclosed in
the Claims Register, or (d) which in the aggregate, if
liquidated and matured, could not reasonably result in a
Material Adverse Change.
2.7 Absence of Certain Developments.
(a) Since the Balance Sheet Date, neither
Hexcel nor either Material Subsidiary has awarded or paid
any bonuses, entered into, or otherwise has become liable
for any payment pursuant to, any employment, deferred
compensation, severance or similar agreement (or amended any
such agreement), or increased the compensation payable or to
become payable by it to any of Hexcel's existing executive
officers in excess of $100,000 per officer per annum, except
(i) as disclosed in the Disclosure Statement, (ii) pursuant
to the agreement referred to in Section 7.1(d) and (iii) the
extension of John J. Lee's existing employment agreement
beyond the current employment term thereof on the terms
described on Exhibit VI or pursuant to the extension of John
J. Lee's existing contract on other terms acceptable to
Purchaser.
(b) No decision has been taken by Hexcel to
change materially the direction of Hexcel's business from
that disclosed in the Disclosure Statement.
2.8 SEC Documents. Hexcel has filed all required
reports, schedules, forms, statements and other documents
with the Securities and Exchange Commission ("SEC") since
January 1, 1994 (the "SEC Documents"). As of their
respective dates, the SEC Documents were complete and
correct in all material respects and complied in all
material respects with the requirements of the Securities
Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as the case may be, and the rules and regulations of
the SEC promulgated thereunder applicable to such SEC
Documents. Except to the extent that information contained
in any SEC Document has been revised or superseded by a
later-filed SEC Document, none of the SEC Documents
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light
of the circumstances under which they were made, not
misleading at the date such SEC Documents were filed with
the SEC. The financial statements of Hexcel included in the
SEC Documents comply as to form in all material respects
with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have
been prepared in accordance with generally accepted
accounting principles (except, in the case of unaudited
statements, as permitted by Form 10-Q of the SEC) applied on
a consistent basis (except as may be indicated in the notes
thereto) and fairly present the consolidated financial
position of Hexcel and its consolidated subsidiaries as of
the dates thereof and the consolidated results of their
operations and cash flows (or changes in financial position
prior to the approval of FASB 95) for the periods then ended
(subject, in the case of unaudited statements, to normal
year-end audit adjustments).
2.9 Taxes.
(a) Except as disclosed on Schedule 2.9(a)
hereto, Hexcel and each of the Subsidiaries, or the
affiliated, combined or unitary group of which Hexcel and
any of the Subsidiaries are or were a member, as the case
may be (collectively, the "Tax Affiliates"), have timely
filed (taking into account extensions of time to file) with
the appropriate Governmental Bodies all Tax Returns required
to be filed by or with respect to them, their operations and
assets, other than those which the failure to file could not
in the aggregate reasonably result in a Material Adverse
Change.
(b) Except as disclosed on Schedule 2.9(b)
hereto, Hexcel, each of the Subsidiaries and each of the Tax
Affiliates has timely paid or reserved on the Balance Sheet
all Taxes that were reported as being due and payable on Tax
Returns filed with respect to all prior taxable periods.
(c) Except as disclosed on Schedule 2.9(c)
hereto, Hexcel and each of the Subsidiaries (or a Tax
Affiliate on behalf of Hexcel or such Subsidiary) have
complied with all applicable Laws relating to the payment
and withholding of Taxes and have timely withheld from
employee wages and paid over to the proper Governmental
Bodies all amounts required to be so withheld and paid over
for all periods under all applicable Laws, except for such
non-compliances which in the aggregate could not reasonably
result in a Material Adverse Change.
(d) Neither Hexcel nor any of the
Subsidiaries is a party to, bound by or subject to any
obligation under any tax sharing or similar agreement with
any Tax Affiliate which has not been delivered to Purchaser.
(e) None of Hexcel, any of the Subsidiaries
or any of the Tax Affiliates on behalf of Hexcel or any of
the Subsidiaries has filed a consent pursuant to Section
341(f) of the Code or agreed to have Section 341(f)(2) of
the Code apply to any disposition of a subsection (f) asset
(as such term is defined in Section 341(f)(4) of the Code)
owned by Hexcel or any of the Subsidiaries.
(f) None of Hexcel, any of the Subsidiaries
or any of the Tax Affiliates on behalf of Hexcel or any of
the Subsidiaries has (i) agreed to or is required to make
any adjustment pursuant to Section 481(a) of the Code by
reason of a change in accounting method initiated by Hexcel
or any of the Subsidiaries, or (ii) except as disclosed on
Schedule 2.9(f)(ii) hereto, knowledge that the IRS has
proposed any such adjustment or change in accounting method,
in either case the effect of which could reasonably result
in a Material Adverse Change.
(g) There is no contract, agreement, plan or
arrangement covering any person that, individually or
collectively, could give rise to the payment of any amount
that would not be deductible by Hexcel or any of the
Subsidiaries by reason of Section 280G of the Code.
2.10 Title to Assets. Except as disclosed in the
Disclosure Statement, each of Hexcel and the Material
Subsidiaries has good title, free and clear of all Liens, to
all of the assets purported to be owned by it, subject only
to Permitted Exceptions and Permitted Liens; since the
Balance Sheet Date, neither Hexcel nor either of the
Material Subsidiaries has disposed of any assets other than
in the ordinary course of business or assets the actual or
proposed disposition of which is either disclosed in the
Disclosure Statement or could not in the aggregate
reasonably result in a Material Adverse Change.
2.11 Intellectual Property.
(a) Hexcel and the Material Subsidiaries
possess all material Intellectual Property, know-how,
formulae and other proprietary and trade rights necessary
for the conduct of their respective businesses as now
conducted, other than as could not in the aggregate
reasonably result in a Material Adverse Change.
(b) There have been no claims made, and none
of Hexcel or either of the Material Subsidiaries has
received any notice or otherwise knows, that the use by
Hexcel or any Subsidiary of any of the patents, trademarks,
trade names, service marks, brand marks, brand names,
Software, industrial designs and copyrights used by Hexcel
or any Subsidiary, or any registration thereof or pending
application therefor, or license or other Contract relating
thereto (collectively, the "Intellectual Property")
conflicts with, infringes upon, violates or interferes with
or constitutes an appropriation of any right, title,
interest or goodwill, including, without limitation, any
intellectual property right, patent, trademark, trade name,
service mark, brand mark, brand name, computer program,
database, industrial design, copyright or any pending
application therefor of any other Person, other than those
that in the aggregate could not reasonably result in a
Material Adverse Change.
2.12 Material Contracts. On the First Closing
Date, except as disclosed in the Disclosure Statement, each
of Hexcel's Contracts will be legal, valid and enforceable
in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies
generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity), other than
Contracts which in the aggregate if not legal, valid and
enforceable could not reasonably result in a Material
Adverse Change. Except as disclosed in the Disclosure
Statement and other than defaults that in the aggregate
could not reasonably result in a Material Adverse Change
assuming consummation of the Plan, (i) there is no default
under any Contract either by Hexcel or a Material Subsidiary
or, to the knowledge of Hexcel and the Material
Subsidiaries, by any other party thereto, and (ii) no event
has occurred that with the lapse of time or the giving of
notice or both would constitute a default thereunder.
2.13 Employee Benefits.
(a) Schedule 2.13(a) hereto sets forth a
complete and correct list of all "employee benefit plans",
as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and any other
pension plans or employee benefit arrangements or payroll
practices (including, without limitation, severance pay,
vacation pay, company awards, salary continuation for
disability, sick leave, deferred compensation, bonus or
other incentive compensation, stock purchase arrangements or
policies) maintained by Hexcel or any Subsidiary or to which
Hexcel or any Subsidiary contributes or is obligated to
contribute with respect to employees of Hexcel or any
Subsidiary other than any with respect to employees of
foreign Subsidiaries ("Employee Benefit Plans"), and
identifies which Employee Benefit Plans are (i) subject to
Section 4063 and 4064 of ERISA ("Multiple Employer Plans"),
(ii) multiemployer plans (as defined in Section 4001(a) of
ERISA) ("Multiemployer Plans"), or (iii) welfare plans
providing continuing benefits after the termination of
employment (other than as required by Section 4980B of the
Code and at the former employee's own expense).
(b) Except as disclosed in the Disclosure
Statement or in Schedule 2.13(b) hereto, none of Hexcel, any
of the Subsidiaries or any trade or business (whether or not
incorporated) which is under common control or treated as a
single employer with Hexcel ("ERISA Affiliate") would have
any withdrawal or other liability (contingent or otherwise)
under Section 4201, 4063 or 4064 of ERISA to any Multiple
Employer Plan or Multiemployer Plan if they ceased
contributions to and withdrew from such plans.
(c) Except as disclosed in the Disclosure
Statement, nothing has occurred with respect to the
operation of any Employee Benefit Plan intended to qualify
under Section 401 of the Code ("Qualified Plan") which could
cause the loss of such qualification or the imposition of
any liability, penalty or tax under ERISA or the Code which
liability, penalty or tax could reasonably result in a
Material Adverse Change.
(d) Except as disclosed in the Disclosure
Statement, the benefit liabilities, as defined in Section
4001(a)(16) of ERISA, of each of the Employee Benefit Plans
subject to Title IV of ERISA using the actuarial assumptions
that would be used by the Pension Benefit Guaranty
Corporation (the "PBGC") in the event it terminated each
such plan do not exceed the fair market value of the assets
of each such plan.
(e) All amendments and actions required to
bring each of the Employee Benefit Plans into conformity in
all material respects with all of the applicable provisions
of ERISA and other applicable Laws have been made or taken
except to the extent that such amendments or actions are not
required by law to be made or taken until a date after the
First Closing Date or are disclosed on Schedule 2.13(e).
2.14 Litigation. Except as disclosed in the
Disclosure Statement or in Schedule 2.14 hereto, there are
no (i) pending or, to the knowledge of Hexcel and the
Material Subsidiaries, threatened Legal Proceedings against
or affecting Hexcel or any of the Material Subsidiaries or
any properties or assets of Hexcel or any of the Material
Subsidiaries, at law or in equity, other than claims
reflected in the Claims Register, Legal Proceedings in the
Case by parties in interest in respect of corporate
governance matters and other Legal Proceedings that in the
aggregate could not reasonably result in a Material Adverse
Change or (ii) outstanding Orders of any Governmental Body
against, affecting or naming Hexcel or any of the Material
Subsidiaries or directly affecting any of their properties
or assets, other than those that in the aggregate could not
reasonably result in a Material Adverse Change. Hexcel has
disclosed to Purchaser all pending Legal Proceedings that if
adversely determined could reasonably result in a Material
Adverse Change.
2.15 Environmental Matters. Except as disclosed
in the Disclosure Statement or the Plan:
(a) The operations of Hexcel and the
Subsidiaries have been and are in compliance with all
Environmental Laws, other than for such non-compliances that
in the aggregate could not reasonably result in a Material
Adverse Change.
(b) Hexcel and the Subsidiaries have all
Environmental Permits necessary for their operations other
than those that in the aggregate could not reasonably result
in a Material Adverse Change. Hexcel and the Subsidiaries
are in compliance with all Environmental Permits other than
those instances of non-compliance that in the aggregate
could not reasonably result in a Material Adverse Change.
None of Hexcel or any Subsidiary has received any notice
from any source, or has otherwise obtained knowledge, to the
effect that there is lacking any material Environmental
Permit required in connection with the current use or
operation of any Facility, not disclosed to Purchaser.
(c) Neither Hexcel nor any of the
Subsidiaries, or any of their past or current Facilities and
operations, are subject to any outstanding Order, Contract
or, to the knowledge of Hexcel or any of the Subsidiaries,
federal, state or local investigation respecting (i) any
Remedial Action or (ii) any Environmental Claim, except for
such that in the aggregate could not reasonably result in a
Material Adverse Change.
(d) Hexcel and the Subsidiaries are not
subject to any pending, or, to the knowledge of Hexcel or
any of the Subsidiaries, threatened, Legal Proceeding
alleging the violation of any Environmental Law or
Environmental Permit, not disclosed to Purchaser.
(e) Neither Hexcel nor any Subsidiary has
caused or permitted any Hazardous Materials to remain or be
disposed of, either on or under real property legally or
beneficially owned or operated by Hexcel or any Subsidiary
or on any real property not permitted to accept, store or
dispose of such Hazardous Materials, other than in
compliance with all applicable Environmental Laws and for
such instances of non-compliance that in the aggregate could
not reasonably result in a Material Adverse Change.
(f) Hexcel and the Subsidiaries have no
contingent liabilities with respect to any Release of
Hazardous Materials at any Facility or in connection with
the off-site shipment of such Hazardous Materials other than
those that in the aggregate could not reasonably result in a
Material Adverse Change; none of the operations of Hexcel or
any Subsidiary involve the transportation, treatment,
storage or disposal of hazardous waste or subject waste, as
defined under 40 C.F.R. Parts 260-270 (in effect as of the
date of this Agreement); and there is not now on or in any
property of Hexcel or any Subsidiary (1) any leaking
underground storage tanks, surface tanks, dikes or
impoundments, (2) any friable asbestos-containing materials,
or (3) any polychlorinated biphenyls.
(g) No environmentally related audits,
studies, reports, analyses or results of investigations that
have been performed with respect to currently or previously
owned, leased or operated Facilities have revealed any
actual or potential losses under Environmental Laws in
excess of $250,000 at any such Facility.
2.16 Disclosure Statement. The Disclosure
Statement does not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
Hexcel does not know of any facts (other than facts of a
general economic or political nature) which have caused or
in the future are reasonably likely to cause a Material
Adverse Change which have not been set forth in the
Disclosure Statement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Hexcel
that:
3.1 Organization and Good Standing. Purchaser is
a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland.
3.2 Authorization of Agreement. Purchaser has
all requisite corporate power and authority to execute and
deliver this Agreement and the Registration Rights
Agreement, and to perform fully its obligations hereunder
and thereunder. The execution, delivery and performance by
Purchaser of this Agreement and the Registration Rights
Agreement and the consummation by the Purchaser of the
transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of
Purchaser. This Agreement has been, and the Registration
Rights Agreement will be at or prior to the First Closing,
duly executed and delivered by Purchaser and (assuming the
due authorization, execution and delivery by Hexcel) this
Agreement constitutes, and the Registration Rights Agreement
when so executed and delivered will constitute, legal, valid
and binding obligations of Purchaser, enforceable against
Purchaser in accordance with their respective terms, subject
to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to
general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding
at law or in equity).
3.3 Consents of Third Parties. Neither the
execution and delivery by Purchaser of this Agreement or the
Registration Rights Agreement, nor the compliance by
Purchaser with any of the provisions hereof or thereof will
(a) conflict with, or result in the breach of any of the
terms of the certificate of incorporation or by-laws or
other corporate governance documents of Purchaser, (b)
conflict with, violate, result in the breach of, or
constitute a default under any Contract or Order to which
Purchaser is a party or by which Purchaser or its properties
or assets are bound or (c) violate any order, writ,
injunction, decree, statute, rule or regulation applicable
to the Purchaser or any of its respective assets. No
consent, waiver, approval, Order, Permit or authorization
of, or declaration or filing with, or notification to, any
Person or Governmental Body is required on the part of
Purchaser in connection with the execution and delivery of
this Agreement or the Registration Rights Agreement or the
compliance by Purchaser with any of the provisions hereof or
thereof, except for compliance with the applicable
requirements of the HSR Act and the Exchange Act and
assuming that Hexcel obtains those approvals and makes those
filings disclosed in Section 2.2(b).
3.4 Investment Intention. Purchaser acknowledges
that the New Common Stock to be acquired by Purchaser has
not been registered for sale under any federal or state
securities laws and that such shares are being offered and
sold to Purchaser pursuant to the exemption from
registration provided for in Section 4(2) of the Securities
Act. Purchaser is an "accredited investor" within the
meaning of Regulation D under the Securities Act. Any
shares of New Common Stock acquired by Purchaser pursuant to
this Agreement will be taken by Purchaser solely for its own
account for the purpose of investment and not with a view to
the public distribution thereof.
3.5 Financial Advisors. No Person has acted
directly or indirectly as a broker, finder or financial
advisor for Purchaser in connection with the negotiations
relating to or the transactions contemplated by this
Agreement.
3.6 SEC Documents. Purchaser is a no-load,
diversified, open-end management investment company
registered under the Investment Company Act of 1940, as
amended. Purchaser has filed all required reports,
schedules, forms, statements and other documents with the
SEC since January 1, 1994 (the "Purchaser SEC Documents").
As of their respective dates, the Purchaser SEC Documents
were complete and correct in all material respects and
complied in all material respects with the requirements of
the Securities Act or the Exchange Act, as the case may be,
and the rules and regulations of the SEC promulgated
thereunder applicable to such Purchaser SEC Documents, and
except to the extent that information contained in any
Purchaser SEC Document has been revised or superseded by a
later-filed Purchaser SEC Document, none of the Purchaser
SEC Documents contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading at the date such Purchaser SEC
Documents were filed with the SEC.
ARTICLE IV
FURTHER AGREEMENTS OF THE PARTIES
From and after the date hereof and until the First
Closing Date:
4.1 Access to Information. Hexcel shall (and
shall cause its Subsidiaries and officers, directors,
employees, auditors and agents to) afford the officers,
employees, representatives, and agents of Purchaser (the
"Purchaser Representatives") reasonable access at all
reasonable times to its officers, employees, agents,
properties, offices, plants and other facilities, books and
records, and shall furnish such Purchaser Representatives
with all financial, operating and other data and information
as may be reasonably requested, as long as such Purchaser
Representative is a party to a confidentiality agreement
with Hexcel, or is bound by a confidentiality agreement with
Hexcel binding upon Purchaser.
4.2 Filings with Governmental Bodies; Certain
Negotiations.
(a) As promptly as practicable after the
execution of this Agreement, each party shall, in
cooperation with the other, file or cause to be filed all
reports, notifications and other information that may be
required under the HSR Act, and shall furnish or cause to be
furnished to the other all such information in its
possession as may be reasonably necessary for the completion
of the reports, notifications or submissions to be filed by
the other. Each party hereto agrees to use its best efforts
to comply in a full and timely manner with any request from
a Governmental Body for additional information. Hexcel
shall bear all filing fees required to be paid in connection
with compliance with the HSR Act.
(b) The parties hereto shall negotiate in
good faith with any Governmental Body with respect to any
threatened or actual Legal Proceeding or any requested
relief with respect to the HSR Act.
4.3 Updating of Information. Hexcel shall
promptly deliver to Purchaser any information, including any
notices received from third parties, concerning events
subsequent to the date of this Agreement which is necessary
to supplement the information contained in or made a part of
the representations and warranties contained herein,
including the schedules hereto, or delivered by Hexcel
pursuant to any of the covenants contained herein, in order
that the information contained herein or so delivered be
complete and accurate in all material respects, it being
understood and agreed that the delivery of such information
shall not in any manner constitute a waiver by Purchaser of
any of the terms hereof, including without limitation any of
the conditions precedent to the First Closing, and it being
further understood that Hexcel may satisfy its obligations
under this Section 4.3 by delivery of an amendment to the
Disclosure Statement.
4.4 Periodic Financial Statements. Hexcel shall
furnish, or cause to be furnished, to Purchaser (a) within
30 days after the end of each month or 45 days after the end
of each of its first three fiscal quarters of each year,
between the date hereof and the First Closing Date, an
unaudited consolidated balance sheet of Hexcel and the
Subsidiaries as at the end of such month or quarter and the
related unaudited consolidated income statement and
statement of changes in financial position for the month or
quarter then ended, which financial statements shall be
prepared in accordance with the books and records of Hexcel,
fairly present the financial position of Hexcel and the
Subsidiaries as of the dates indicated, and with respect to
any such quarterly statements be prepared in the manner and
according to the principles used in preparing the unaudited
Financial Statements and (b) within five business days after
filing with the SEC, copies of all documents filed with the
SEC.
ARTICLE V
BANKRUPTCY MATTERS
5.1 Motion by Hexcel. As expeditiously as
possible after the execution and delivery of this Agreement
but in no event later than August 1, 1994, Hexcel shall file
with the Bankruptcy Court a motion (the "Approval Motion")
requesting the entry of an order (the "Approval Order") of
the Bankruptcy Court in form and substance satisfactory to
Purchaser and its counsel (a) approving and authorizing the
performance by Hexcel of its obligations under Articles IV,
V and VI of this Agreement and (b) establishing a
requirement that any proposal on substantially the same
terms contemplated hereby be of a value at least $2,500,000
over the sum of the Purchase Price and the Standby Purchase
Price (assuming no Offered Shares are purchased in the
Rights Offering) in order for any such proposal to be
subject to acceptance by Hexcel, and that any subsequent
such proposal be at least $100,000 over the prior proposal.
5.2 Plan and Disclosure Statement; Disclosure
Statement Order.
(a) Not later than July 28, 1994 (the
"Submission Date"), Hexcel shall file with the Bankruptcy
Court the Plan and the Disclosure Statement, together with
any pleadings required or desirable in connection therewith
(as reasonably determined by Hexcel and Purchaser).
(b) Hexcel shall use its best efforts to
obtain prompt entry of an order, in form and substance
reasonably satisfactory to Purchaser, approving the
Disclosure Statement, as amended or modified with the
approval of Purchaser (the "Disclosure Statement Order")
under Section 1125 of the Bankruptcy Code.
5.3 Confirmation Order. Upon entry of the
Disclosure Statement Order by the Bankruptcy Court, Hexcel
shall use its best efforts to obtain the prompt entry by the
Bankruptcy Court of an order, in form and substance
reasonably satisfactory to Purchaser and its counsel (the
"Confirmation Order"), confirming the Plan, as amended or
modified with the approval of Purchaser, pursuant to Section
1129 of the Bankruptcy Code, and authorizing the
transactions provided for in this Agreement, which best
efforts shall include promptly soliciting requisite creditor
and shareholder acceptances of the Plan.
5.4 Certain Bankruptcy Undertakings by Hexcel.
(a) Subject to Section 6.2(a) and 6.2(b),
Hexcel shall use its best efforts to effect the transactions
provided for in this Agreement and to confirm and consummate
the Plan expeditiously.
(b) Hexcel shall not amend or modify the
Disclosure Statement or the Plan without first consulting
with Purchaser and shall not amend or modify the Plan
without obtaining Purchaser's approval of any such amendment
or modification, which approval shall not be unreasonably
withheld or delayed.
(c) If the Bankruptcy Court determines or
states that it will not enter an order confirming the Plan
because any provision of the Plan violates any provision of
the Bankruptcy Code or otherwise, then Hexcel promptly shall
consult with Purchaser and, at the request of Purchaser,
shall modify the Plan (including the deletion of any such
provision) in a manner reasonably acceptable to each of
Purchaser and Hexcel so as to render the Plan confirmable
under the Bankruptcy Code.
(d) Hexcel shall provide to Purchaser actual
notice of any hearing on the Approval Order, the Disclosure
Statement Order, the Confirmation Order or any other matter
before the Bankruptcy Court that may materially affect the
consummation of the transactions provided for in this
Agreement. Hexcel shall promptly provide to Purchaser such
copies of motions, orders, briefs, hearing transcripts,
reports and other pleadings and documents filed in the
Bankruptcy Court or in related court proceedings as
Purchaser may reasonably request and all notices given
pursuant to the Plan.
ARTICLE VI
TERMINATION; BREAK-UP FEE
6.1 Termination. Notwithstanding anything herein
to the contrary but subject to Section 6.3, this Agreement
may be terminated and the transactions contemplated hereby
and by the Registration Rights Agreement abandoned at any
time prior to the First Closing:
(a) by mutual written consent of Hexcel and
Purchaser;
(b) by the party not in breach in the event
of a material breach of this Agreement by the other party
which material breach is not cured within ten days after
written notice thereof;
(c) by Purchaser if (i) the Bankruptcy Court
has not determined by August 30, 1994 that the relief
requested in the Approval Motion should be granted subject
only to the entry of an appropriate order (ii) the Approval
Order has not been entered by the Bankruptcy Court on or
prior to September 15, 1994 or (iii) after entry of the
Approval Order, the Approval Order is reversed, revoked,
voided, modified (in any manner that could in the reasonable
judgment of Purchaser materially and adversely affect
Purchaser's rights hereunder) or stayed by an order of a
court of competent jurisdiction;
(d) by Purchaser if (i) the Disclosure
Statement Order has not been entered by the Bankruptcy Court
on or prior to October 15, 1994 or (ii) after entry of the
Disclosure Statement Order, the Disclosure Statement Order
is reversed, revoked, voided, modified (in any manner that
could in the reasonable judgment of Purchaser materially and
adversely affect Purchaser's rights hereunder) or stayed by
an order of a court of competent jurisdiction;
(e) by Purchaser if (i) the Confirmation
Order is not entered by the Bankruptcy Court on or prior to
December 15, 1994 or (ii) after entry of the Confirmation
Order, the Confirmation Order is reversed, revoked, voided,
modified (in any manner that could in the reasonable
judgment of Purchaser materially and adversely affect
Purchaser's rights hereunder) or stayed by an order of a
court of competent jurisdiction;
(f) by Hexcel if (i) the Confirmation Order
is not entered by the Bankruptcy Court on or prior to
December 15, 1994 or (ii) after entry of the Confirmation
Order, the Confirmation Order is reversed, revoked, voided,
modified (in any manner that could in the reasonable
judgment of Hexcel materially and adversely affect Hexcel's
rights hereunder) or stayed by an order of a court of
competent jurisdiction; provided, however, that Hexcel may
not terminate this Agreement pursuant to this paragraph (f)
if Hexcel has failed to comply in all material respects with
its obligations in Article V hereof;
(g) by Hexcel or Purchaser in the event that
Hexcel has advised Purchaser in writing that any condition
in Section 7.1 to Purchaser's obligation to consummate the
First Closing is not capable of being satisfied, which
notice shall identify each such condition and the reasons
for such non-satisfaction; provided, however, that Hexcel's
right to terminate this Agreement pursuant to this paragraph
(g) shall be conditioned on Purchaser's failure to waive
such condition within seven business days following the date
on which Purchaser receives such notice from Hexcel;
(h) by Purchaser or Hexcel if the First
Closing Date has not occurred by the thirtieth day following
the date on which the Confirmation Order is entered by the
Bankruptcy Court; provided, however, that, at Purchaser's
election (such election to be made in a writing delivered to
Hexcel not later than five days prior to such date) if
Purchaser is not in material breach of this Agreement, such
date may be extended up to another 30 days;
(i) by Purchaser or Hexcel in the event that
Hexcel enters into an agreement with any Person with respect
to any Acquisition Transaction or an Acquisition Transaction
is otherwise consummated;
(j) by Purchaser or Hexcel in the event that
Hexcel sponsors, supports, endorses, recommends, proposes or
seeks confirmation of any plan of reorganization in the Case
other than the plan of reorganization provided for in this
Agreement;
(k) by Purchaser or Hexcel in the event that
the Bankruptcy Court enters an order confirming any plan of
reorganization in the Case based upon or relating to any
Acquisition Transaction or upon Hexcel's motion enters any
order otherwise authorizing an Acquisition Transaction; and
(l) by Purchaser in the event that the
Creditors' Committee in the Case fails to support the Plan
and this Agreement by August 19, 1994 or thereafter
withdraws its support thereof.
The right of termination by Purchaser set forth in
Section 6.1(c), (d) and (e), by Hexcel in Section 6.1(f) and
by Hexcel or Purchaser in Section 6.1(g) must be exercised
within 15 days following the first date on which such right
of termination arises.
6.2 No Solicitation; Break-up Fee.
(a) During the period from the date of this
Agreement to the earlier of the First Closing Date or the
termination of this Agreement, Hexcel shall not, nor shall
it permit any of its Subsidiaries to, nor shall it authorize
any officer, director or employee of or any investment
banker, attorney or other advisor or representative of
Hexcel or any of its Subsidiaries to (i) solicit or initiate
the submission of any offer or proposal for an Acquisition
Transaction or (ii) engage in negotiations regarding an
offer or proposal received by Hexcel for a potential
Acquisition Transaction unless the Board of Directors or
appropriate committee thereof believes in good faith in the
exercise of its fiduciary duties that such offer or proposal
has a reasonable possibility of resulting in an Acquisition
Transaction more favorable to Hexcel than the transaction
contemplated hereby; provided, however, that prior to the
entry of the Confirmation Order, Hexcel may, in response to
an unsolicited request therefor, furnish information with
respect to Hexcel to any Person and engage in follow-up due
diligence sessions, except that confidential information
about Hexcel may be furnished only if the Person to whom it
is to be given is party to a customary confidentiality
agreement (as determined by Hexcel's counsel) and provided,
further, that any negotiations by Hexcel that comply with
the foregoing clause (ii) shall not constitute a breach of
the foregoing clause (i). For the purposes of this
Agreement, "Acquisition Transaction" means (i) any business
combination involving Hexcel or either Material Subsidiary,
including without limitation (A) the disposition of any
business currently conducted by Hexcel or either Material
Subsidiary and which represents sales in excess of 10% of
Hexcel's consolidated sales as reported in the December 31,
1993 financial statements or (B) the sale of assets of
Hexcel and/or the Subsidiaries for $40,000,000 or more in a
single transaction or series of related transactions,
excluding in the case of (A) and (B) transactions and
proposed transactions disclosed in the Disclosure Statement
or (ii) any sale or issuance of a more than 5% equity
interest in Hexcel or either Material Subsidiary other than
the issuance by Hexcel of equity (A) in exchange for
existing indebtedness of Hexcel and/or (B) to holders of Old
Common Stock pro rata; provided, however, that the term
Acquisition Transaction does not include any transaction or
proposed transaction disclosed in the Disclosure Statement.
(b) In the event that Hexcel receives a
proposal with respect to an Acquisition Transaction that, in
the exercise of its fiduciary obligations (as determined in
good faith by the Board of Directors or appropriate
committee thereof after consultation with counsel), the
Board of Directors or appropriate committee thereof
determines to be more favorable to Hexcel, the Board of
Directors or appropriate committee thereof may withdraw its
approval or recommendation of this Agreement, approve or
recommend any such other proposal, enter into an agreement
with respect to such other proposal or terminate this
Agreement, and in each case shall provide Purchaser with
immediate notice thereof. Any termination of this Agreement
pursuant to this paragraph (b) shall be subject to Section
6.3.
(c) Whether or not the First Closing is
consummated, Hexcel acknowledges and agrees that Purchaser
has made a substantial investment of management time and
incurred substantial out-of-pocket expenses in connection
with the negotiation and execution of this Agreement and the
Registration Rights Agreement and the effort to consummate
the transactions contemplated hereby and thereby. If the
First Closing is not consummated and a "Break-up Fee Event"
(as defined below) shall have occurred, Hexcel shall
immediately pay to Purchaser a fee (the "Break-up Fee")
equal to the excess of $1,250,000 over all amounts
theretofore paid to Purchaser pursuant to Section 6.4. In
the event that Hexcel pays Purchaser the Break-up Fee,
Hexcel shall not be required to make any additional payment
pursuant to Section 6.4. As used herein, a "Break-up Fee
Event" shall be a termination of this Agreement (i) by
Hexcel or Purchaser pursuant to Section 6.1(i), 6.1(j) or
6.1(k), (ii) by Hexcel pursuant to Section 6.2(b), or (iii)
by Hexcel pursuant to Section 6.1(f), 6.1(h) or 6.1(g) but
only in the case of this clause (iii) if thereafter, during
the pendency of the Case an Acquisition Transaction is
consummated other than one that is materially less favorable
to Hexcel or the Hexcel creditors in Class 5 under the Plan;
provided, however, that no Break-up Fee shall be payable if
Purchaser is in material breach of this Agreement at the
date of any such termination.
(d) Upon the occurrence of a Break-up Fee
Event, Purchaser shall provide written notice to Hexcel of
Purchaser's entitlement to the Break-up Fee and Hexcel shall
be liable for the payment of the Break-up Fee and shall
immediately pay to Purchaser the Break-up Fee by wire
transfer of immediately available funds to an account or
accounts designated by Purchaser. Until Hexcel's obligation
to pay the Break-up Fee is fully and indefeasibly
discharged, Purchaser's claim for the Break-up Fee shall be
treated as an allowed administrative claim in the Case
pursuant to Section 503(b) of the Bankruptcy Code entitled
to priority under Section 507(a)(1) of the Bankruptcy Code.
6.3 Effect of Termination. If this Agreement is
terminated and the transactions contemplated hereby are not
consummated as provided above, this Agreement shall become
void and be of no further force and effect and no party
shall have any further liability to the other party
thereunder as a result of such termination, except that any
payment obligations arising under Section 6.2 by reason of
such termination or under Section 6.4 in respect of expenses
incurred through the date of such termination or under
Section 9.2 (and the provisions of this Section 6.3 and of
Sections 6.2, 6.4 and 9.2) shall survive the termination of
this Agreement.
6.4 Expense Reimbursement.
(a) Hexcel shall reimburse Purchaser for all
of Purchaser's out-of-pocket costs and expenses (including
the reasonable fees and expenses of Purchaser's counsel,
accountants, investment bankers and other professional
persons), payable at the First Closing and thereafter as
incurred or on the termination of this Agreement, (i) in
connection with the negotiation, documentation and
implementation of this Agreement and the Registration Rights
Agreement and the transactions contemplated hereby and
thereby, including, without limitation, the out-of-pocket
costs and expenses of Purchaser in connection with its due
diligence investigation of Hexcel's business or (ii)
relating to or resulting from or arising out of any claim,
action or proceedings commenced or asserted in the Case;
provided, however, that if the First Closing does not occur
such reimbursement shall be limited to $500,000 in the
aggregate.
(b) Any claim for reimbursement under this
Section 6.4 shall be paid by Hexcel within ten days after
receipt by Hexcel of an invoice from Purchaser therefor
(subject to Section 6.4(a) as to when such may first be
payable) and, pending payment, such claims shall be treated
as allowed administrative expenses in the Case under Section
503(b) of the Bankruptcy Code entitled to priority under
Section 507(a)(1) of the Bankruptcy Code.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions Precedent to Obligations of
Purchaser. The obligation of Purchaser to consummate the
First Closing is subject to the fulfillment, on the First
Closing Date, of each of the following conditions (any or
all of which may be waived by Purchaser in whole or in part
to the extent permitted by applicable Law without the need
for an order of the Bankruptcy Court):
(a) all representations and warranties of
Hexcel to Purchaser contained herein shall be true and
correct in all material respects (other than those which
already have a materiality standard included therein, which
representations and warranties shall be true and correct in
all respects) when made and at and as of the First Closing
Date with the same effect as though those representations
and warranties had been made again at and as of that time;
(b) Hexcel shall not be in material breach
of this Agreement;
(c) all requisite notifications, filings and
applications under and pursuant to any and all applicable
public, governmental and regulatory acts and laws covering
matters of antitrust, acquisition and investment, including
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), to be submitted or given by Hexcel,
shall have been submitted or waived and all applicable
waiting periods under all such acts and laws shall have
expired;
(d) Hexcel shall have entered into an
employment agreement with John J. Lee on terms reasonably
satisfactory to Purchaser and on terms not less favorable to
Hexcel than those summarized on Exhibit VI hereto, and
Hexcel shall have caused the contingency employment
agreements with those officers named on Exhibit VII to have
been terminated or rejected (it being understood that
officers who agree to terminate such agreements will receive
agreements providing for one year's severance pay and
participation in Hexcel's retention bonus plan);
(e) Hexcel shall have duly executed and
delivered the Registration Rights Agreement;
(f) the five individuals selected by
Purchaser shall have been appointed to the Board of
Directors to serve in the classes designated by Purchaser,
at least one of whom shall be a member of Class I, and the
four other directors, if not on the Board of Directors at
the date hereof, and the classes in which they serve shall
be reasonably satisfactory to Purchaser;
(g) Hexcel shall have obtained exit
financing as set forth in the Disclosure Statement, which
will provide for a facility of, if Class 9 under the Plan
accepts the Plan in accordance with the provisions of
section 1126 of the Bankruptcy Code, $35,000,000 and, if
Class 9 under the Plan does not accept the Plan in
accordance with the provisions of section 1126 of the
Bankruptcy Code, $25,000,000 (subject in either case to
availability restrictions), on commercially reasonable terms
reasonably satisfactory to Purchaser and which will provide
Hexcel with working capital sufficient to meet its
anticipated requirements as reflected in Hexcel's updated
projected financial information referred to in Section
7.1(t) below;
(h) the Bankruptcy Court shall have entered
all orders required to be entered pursuant to this
Agreement, including, without limitation, the Approval
Order, the Disclosure Statement Order and the Confirmation
Order (all such orders to be reasonably satisfactory in form
and substance to Purchaser) and each of such orders shall
have become Final Orders and shall be in full force and
effect;
(i) Hexcel shall have either (A) obtained a
purchase order from The Northrop Grumman Corporation
substantially in accordance with that contemplated by the
Disclosure Statement and shall have obtained all approvals
required to be obtained by Hexcel for such purchase order to
be enforceable against The Northrop Grumman Corporation or
(B) entered into another agreement with The Northrop Grumman
Corporation which results in comparable economic value for
Hexcel, as reasonably determined by Purchaser;
(j) Hexcel shall have entered into, and
obtained all necessary approvals in connection with, the
Belgian financing as approved by the Bankruptcy Court on
June 8, 1994;
(k) the 1986 Rights Agreement and rights to
purchase shares of capital stock of Hexcel pursuant to the
1986 Rights Agreement shall have been canceled pursuant to
the Plan;
(l) Hexcel's disclosure statement as
approved by the Bankruptcy Court and Hexcel's plan of
reorganization as confirmed by the Bankruptcy Court shall
each be in form and substance reasonably satisfactory to
Purchaser and its counsel and shall provide for, and be
consistent with, this Agreement;
(m) Purchaser shall have been furnished with
a certificate (dated the First Closing Date and in form and
substance reasonably satisfactory to Purchaser) executed by
the chief executive officer and chief financial officer of
Hexcel certifying as to the fulfillment of the conditions
specified in Sections 7.1(a), 7.1(b), 7.1(c), 7.1(f), 7.1(h)
as to the Confirmation Order being a Final Order, 7.1(i),
7.1(j), 7.1(k), 7.1(o), 7.1(q) as to Hexcel, 7.1(r), 7.1(s)
and 7.1(u);
(n) the Standard & Poor's 500 Index shall
not have declined more than 15% from June 17, 1994;
(o) no Legal Proceedings shall have been
instituted against Hexcel or any Subsidiary since the date
of this Agreement which could reasonably result in a
Material Adverse Change;
(p) no Legal Proceedings shall have been
instituted or threatened or claim or demand made against
Purchaser seeking to restrain or prohibit or to obtain
substantial damages with respect to the consummation of the
transactions contemplated by this Agreement which in the
reasonable judgment of Purchaser could have a material
adverse effect on Purchaser;
(q) there shall not be in effect any Order
by a Governmental Body of competent jurisdiction
restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this
Agreement and all approvals of Governmental Bodies,
including with respect to ISRA and ECRA, required to be
obtained in connection with the First Closing shall have
been obtained and remain in full force and effect;
(r) there shall be no annual meeting of
Hexcel or special meeting to elect directors of Hexcel
scheduled for a date after the First Closing Date which
shall have a record date prior to the First Closing Date;
(s) there shall have occurred no material
adverse change in the business, properties, results of
operations, prospects or condition (financial or otherwise)
of Hexcel and the Subsidiaries taken as a whole since the
latest date as of which historical information in respect
thereof is given in the Disclosure Statement;
(t) Hexcel shall have delivered to Purchaser
updated projected financial information in the same form as
the projected financial information attached as Exhibit E to
the Disclosure Statement, which delivery shall be made and
the projected financial information shall be as of a date
not earlier than five days nor later than two days prior to
the First Closing Date;
(u) all conditions under the Plan to the
Effective Date other than the occurrence of the First
Closing shall be satisfied; and
(v) Purchaser shall have been furnished with
an opinion of Kronish, Lieb, Weiner & Hellman, counsel to
Hexcel, in substantially the form of Exhibit I hereto.
7.2 Conditions Precedent to Obligations of Hexcel
to First Closing. The obligations of Hexcel to consummate
the First Closing are subject to the fulfillment, on the
First Closing Date, of each of the following conditions (any
or all of which may be waived by Hexcel in whole or in part
to the extent permitted by applicable Law without the need
for an order of the Bankruptcy Court):
(a) all representations and warranties of
Purchaser to Hexcel contained herein shall be true and
correct in all material respects (other than those which
already have a materiality standard included therein, which
representations and warranties shall be true and correct in
all respects) when made and at and as of the First Closing
Date with the same effect as though those representations
and warranties had been made again at and as of that time;
(b) Purchaser shall have performed and
complied in all material respects with all obligations and
covenants required by this Agreement to be performed or
complied with by Purchaser on or prior to the First Closing
Date;
(c) all requisite notifications, filings and
applications under and pursuant to any and all applicable
public, governmental and regulatory acts and laws covering
matters of antitrust, acquisition and investment, including
the HSR Act, to be submitted by Purchaser shall have been
submitted or waived and all applicable waiting periods under
all such acts and laws shall have expired;
(d) there shall not be in effect any Order
by a Governmental Body of competent jurisdiction
restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this
Agreement and all approvals of Governmental Bodies,
including with respect to ISRA and ECRA, required to be
obtained in connection with the First Closing shall have
been obtained and remain in full force and effect;
(e) Purchaser shall have duly executed and
delivered the Registration Rights Agreement;
(f) all conditions under the Plan to the
Effective Date other than the occurrence of the First
Closing shall be satisfied;
(g) Hexcel shall have been furnished with a
certificate (dated the First Closing Date and in form and
substance reasonably satisfactory to Hexcel) executed by a
duly authorized officer of Purchaser certifying as to the
fulfillment of the conditions specified in Sections 7.2(a),
7.2(b), 7.2(c) and 7.2(d) as to Purchaser;
(h) the Confirmation Order shall be
reasonably satisfactory in form and substance to Hexcel,
shall have become a Final Order and shall be in full force
and effect; and
(i) Hexcel shall have been furnished with
opinions of E. N. Cohernour, Esq., general counsel to
Purchaser, and Weil, Gotshal & Manges, special counsel to
Purchaser, in substantially the form of Exhibit II hereto,
together with an opinion of Skadden, Arps, Slate, Meagher
and Flom, in form and substance reasonably satisfactory to
Hexcel, as to compliance with the Investment Company Act of
1940, as amended (the "Act").
7.3 Conditions Precedent to Obligations of
Purchaser to Second Closing. The obligations of Purchaser
to consummate the Second Closing are subject to the
fulfillment, on the Second Closing Date, of each of the
following conditions (any or all of which may be waived by
Purchaser in whole or in part to the extent permitted by
applicable Law without the need for an order of the
Bankruptcy Court):
(a) the Rights Offering shall have
terminated;
(b) the conditions set forth in Section
7.1(a), but only as to Sections 2.1, 2.2 and 2.3, shall
remain satisfied on the Second Closing Date (but the
reference in Section 2.3 to the First Closing Date shall be
deemed to refer to the Second Closing Date and the reference
therein to Initial Shares shall be deemed to refer to the
Unpurchased Shares) and Purchaser shall have received a
certificate from Hexcel to such effect;
(c) the Confirmation Order shall be a Final
Order and shall be in full force and effect;
(d) Purchaser shall have been furnished with
an opinion of Kronish, Lieb, Weiner & Hellman, counsel to
Hexcel, in substantially the form of Exhibit III hereto;
(e) there shall not be in effect any Order
by a Governmental Body of competent jurisdiction
restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this
Agreement and all approvals of Governmental Bodies,
including with respect to ISRA and ECRA, required to be
obtained in connection with the Second Closing shall have
been obtained and remain in full force and effect; and
(f) Hexcel shall have complied with its
agreements in Section 8.3.
7.4 Conditions Precedent to Obligations of Hexcel
to Second Closing. The obligations of Hexcel to consummate
the Second Closing are subject to the fulfillment, on the
Second Closing Date, of each of the following conditions
(any or all of which may be waived by Hexcel in whole or in
part to the extent permitted by applicable Law without the
need for an order of the Bankruptcy Court):
(a) the Rights Offering shall have
terminated;
(b) the conditions set forth in Section
7.2(a) but only as to Sections 3.1, 3.2, 3.3 and 3.4 shall
remain satisfied as of the Second Closing Date and Hexcel
shall have received a certificate from Purchaser to such
effect;
(c) Hexcel shall have been furnished with
opinions of E. N. Cohernour, Esq., general counsel to
Purchaser, and Weil, Gotshal & Manges, special counsel to
Purchaser, in substantially the form of Exhibit II hereto,
together wit an opinion of Skadden, Arps, Slate, Meagher and
Flom, in form and substance reasonably satisfactory to
Hexcel as to compliance with the Act;
(d) there shall not be in effect any Order
by a Governmental Body of competent jurisdiction
restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this
Agreement and all approvals of Governmental Bodies,
including with respect to ISRA and ECRA, required to be
obtained in connection with the Second Closing shall have
been obtained and remain in full force and effect; and
(e) Purchaser shall have complied with its
agreements in Section 8.4.
ARTICLE VIII
DOCUMENTS TO BE DELIVERED AT THE CLOSINGS
8.1 Documents to Be Delivered by Hexcel at the
First Closing. At the First Closing, Hexcel shall deliver,
or cause to be delivered, to Purchaser the following:
(a) certificates representing the Initial
Shares, registered in the name of Purchaser or its nominee;
(b) a copy of the employment agreement
referred to in Section 7.1(d);
(c) the certificate referred to in Section
7.1(m);
(d) the opinion referred to in Section
7.1(v);
(e) a duly executed counterpart of the
Registration Rights Agreement;
(f) a copy of the Confirmation Order
certified by the Clerk of the Bankruptcy Court within five
business days of the First Closing Date;
(g) a certificate of good standing with
respect to Hexcel issued by the Secretary of State of
Delaware and a copy certified by the Secretary of State of
Delaware of the certificate of incorporation of Hexcel and
comparable evidence (which may be an opinion of local
counsel) for each of the Material Subsidiaries, each dated
within ten days of the First Closing Date; and a copy,
certified by the secretary or assistant secretary of Hexcel
as being a true and complete copy as of the First Closing
Date, of the certificate of incorporation and by-laws of
Hexcel;
(h) a copy of the resolutions of the Board
of Directors authorizing the execution, delivery and
performance of this Agreement, and a certificate of its
secretary, dated the First Closing Date, that such
resolutions were duly adopted by the Board of Directors and
are in full force and effect and attesting to the true
signatures and to the incumbency of the officers of Hexcel
executing this Agreement, the Registration Rights Agreement
or any other document or agreement in connection therewith;
(i) the updated projected financial
information referred to in Section 7.1(t); and
(j) such other documents as Purchaser shall
reasonably request.
8.2 Documents to Be Delivered by Purchaser at the
First Closing. At the First Closing, Purchaser shall
deliver, or cause to be delivered, to Hexcel the following:
(a) evidence of the wire transfer of the
Purchase Price for the Initial Shares;
(b) the certificate referred to in Section
7.2(g);
(c) the opinions referred to in Section
7.2(i);
(d) a duly executed counterpart of the
Registration Rights Agreement;
(e) a certificate of good standing with
respect to Purchaser issued by the Secretary of State of
Maryland, dated within ten days of the First Closing Date; a
copy, certified by the secretary or assistant secretary as
being a true and complete copy as of the First Closing Date,
of the certificate of incorporation and by-laws of
Purchaser; and a copy certified as of a recent date by the
Secretary of State of Maryland of the certificate of
incorporation of Purchaser; and
(f) a copy of the resolutions of the board
of directors of Purchaser authorizing the execution,
delivery and performance of this Agreement, and a
certificate of its secretary, dated the First Closing Date,
that such resolutions were duly adopted and are in full
force and effect and attesting to the true signatures and to
the incumbency of the officers of Purchaser executing this
Agreement and the Registration Rights Agreement.
8.3 Documents to Be Delivered by Hexcel at the
Second Closing. At the Second Closing, Hexcel shall
deliver, or cause to be delivered, to Purchaser the
following:
(a) certificates representing the
Unpurchased Shares, registered in the name of Purchaser or
its nominee;
(b) the certificate referred to in Section
7.3(b);
(c) the opinion referred to in Section
7.3(d);
(d) a certificate of good standing with
respect to Hexcel issued by the Secretary of State of
Delaware, dated within ten days of the Second Closing Date;
and a copy, certified by the secretary or assistant
secretary of Hexcel as being a true and complete copy as of
the Second Closing Date, of the certificate of incorporation
and by-laws of Hexcel;
(e) a copy of the resolutions of the Board
of Directors authorizing the execution, delivery and
performance of this Agreement, and a certificate of its
secretary, dated the Second Closing Date, that such
resolutions were duly adopted by the Board of Directors and
are in full force and effect; and
(f) such other documents as Purchaser shall
reasonably request.
8.4 Documents to Be Delivered by Purchaser at the
Second Closing. At the Second Closing, Purchaser shall
deliver, or cause to be delivered, to Hexcel the following:
(a) evidence of the wire transfer of the
Standby Purchase Price for the Unpurchased Shares;
(b) the certificate referred to in Section
7.4(b);
(c) the opinions referred to in Section
7.4(c);
(d) a certificate of good standing with
respect to Purchaser issued by the Secretary of State of
Maryland, dated within ten days of the Second Closing Date;
and a copy, certified by the secretary or assistant
secretary as being a true and complete copy as of the Second
Closing Date, of the certificate of incorporation and by-
laws of Purchaser; and
(e) a copy of the resolutions of the board
of directors of Purchaser authorizing the execution,
delivery and performance of this Agreement, and a
certificate of its secretary, dated the Second Closing Date,
that such resolutions were duly adopted and are in full
force and effect.
8.5 Resignation of Designee. In the event that
either (i) at the Second Closing the amount paid by
Purchaser for the Unpurchased Shares shall be less than (a)
$7,000,000, if Class 9 under the Plan accepts the Plan in
accordance with the provisions of section 1126 of the
Bankruptcy Code or (b) $5,000,000, if Class 9 under the Plan
does not accept the Plan in accordance with the provisions
of section 1126 of the Bankruptcy Code, or (ii) the Second
Closing shall not have occurred for any reason within 45
days after the First Closing Date, then not later than the
date of the first of such events to occur Purchaser shall
deliver to Hexcel a duly executed and effective resignation
letter from a designee appointed as a Class I member of the
Board of Directors stating that such designee resigns as a
director of the Board of Directors effective as of a date no
later than the date of delivery of such letter to Hexcel.
ARTICLE IX
INDEMNIFICATION AND RELATED MATTERS
9.1 Indemnification.
(a) From and after the First Closing, Hexcel
hereby agrees to indemnify and hold Purchaser and its
directors, officers, employees, affiliates, agents,
successors and assigns (collectively, the "Purchaser
Indemnified Parties") harmless from and against any and all
losses, liabilities, obligations, damages, deficiencies,
costs and expenses ("Losses") based upon, attributable to or
resulting from any misrepresentation, breach of warranty or
non-fulfillment of any agreement on the part of Hexcel under
this Agreement or the Registration Rights Agreement.
(b) From and after the First Closing,
Purchaser hereby agrees to indemnify and hold Hexcel and its
directors, officers, employees, affiliates, agents,
successors and assigns (collectively, the "Hexcel
Indemnified Parties") harmless from and against any and all
Losses based upon, attributable to or resulting from any
misrepresentation, breach of warranty or non-fulfillment of
any agreement on the part of Purchaser under this Agreement
or the Registration Rights Agreement.
(c) An indemnifying party shall be liable
for Losses arising under Sections 9.1(a) and 9.1(b) only to
the extent that the aggregate amount thereof exceeds
$400,000 and written notice of a claim therefor is given
within 18 months following the First Closing Date specifying
the specific representation, warranty or covenant which was
breached, the specific nature of such breach and the amount
of the Losses for which such indemnification is sought.
(d) In no event shall a party be liable for
(i) consequential, exemplary or punitive damages or (ii)
damages resulting from a failure of a representation or
warranty of such party to be true and correct in all
material respects if the other party is advised of such
failure prior to the First Closing, such failure was not
known at the time such representation or warranty was made
and the other party, after being advised of such failure,
nevertheless proceeds to consummate the transactions
contemplated by this Agreement. Nothing herein shall
relieve Hexcel of its obligations under Article VI hereof.
9.2 Liquidated Damages. In the event of a
material breach by Purchaser of this Agreement and the
termination of this Agreement by Hexcel pursuant to Section
6.1(b) by reason thereof, the parties agree that Hexcel's
damages are not readily susceptible of quantification or
calculation and that, accordingly, Purchaser shall pay to
Hexcel, as liquidated damages and not as a penalty, the sum
of $1,250,000 and Purchaser shall not be entitled to any
reimbursement under Section 6.4 for any of its expenses. The
foregoing shall constitute Hexcel's sole and exclusive
remedy for such breach by Purchaser, other than Hexcel's
right to terminate this Agreement as provided herein.
9.3 Financial Advisors. Hexcel agrees to pay and
discharge any compensation payable to any broker, finder or
financial advisor, who acted directly or indirectly for
Hexcel or any Subsidiary in connection with this Agreement
or the transactions described herein.
ARTICLE X
MISCELLANEOUS
10.1 Survival of Representations and Warranties.
The representations and warranties contained in this
Agreement shall survive the First Closing for a period of 18
months, regardless of any investigation made by the parties
hereto. From and after the First Closing, a party's
exclusive remedy for breach of any representation or
warranty or other provision of this Agreement shall be as
set forth in Article IX hereof.
10.2 Certain Definitions. As used herein the
following terms have the respective meaning indicated (such
meaning to be equally applicable to the singular and plural
terms).
"Acquisition Transaction" is defined in Section
6.2(a).
"Act" is defined in Section 7.2(i).
"Agreement" is defined in the opening paragraph of
this Stock Subscription and Standby Purchase Agreement.
"Approval Motion" is defined in Section 5.1.
"Approval Order" is defined in Section 5.1.
"Balance Sheet" is defined in Section 2.5.
"Balance Sheet Date" is defined in Section 2.5.
"Bankruptcy Code" is defined in the first recital.
"Bankruptcy Court" is defined in the first
recital.
"Bankruptcy Rules" is defined in Section 2.2(b).
"Board of Directors" means the board of directors
of Hexcel.
"Break-up Fee" is defined in Section 6.2(c).
"Break-up Fee Event" is defined in Section 6.2(c).
"Case" is defined in the first recital.
"Claims Register" means the claims register
maintained for the Case pursuant to Bankruptcy Rule 5003.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Confirmation Order" is defined in Section 5.3.
"Contract" means any contract, agreement,
indenture, note, bond, loan, instrument, lease, conditional
sale contract, mortgage, license, franchise, insurance
policy, commitment or other arrangement or agreement,
whether written or oral.
"Creditors' Committee" has the meaning specified
in the Plan.
"Disclosure Documents" means the Disclosure
Statement, the Plan, and Hexcel's First Amended Schedules of
Assets and Liabilities as filed with the Bankruptcy Court
pursuant to Bankruptcy Rule 1007 as amended through the date
hereof.
"Disclosure Statement" means Hexcel's disclosure
statement, dated July 27, 1994, including all schedules and
exhibits thereto, a copy of which has been delivered to
Purchaser prior to the execution of this Agreement.
"Disclosure Statement Order" is defined in Section
5.2.
"ECRA" means the New Jersey Environmental Clean-Up
Responsibility Act.
"Effective Date" has the meaning specified in the
Plan.
"Employee Benefit Plan" is defined in Section
2.13(a).
"Environmental Claim" means any notice of
violation, action, claim, Lien, demand, abatement or other
Order or direction (conditional or otherwise) by any
Governmental Body or any Person for personal injury
(including sickness, disease or death), tangible or
intangible property damage, damage to the environment,
nuisance, pollution, contamination or other adverse effects
on the environment, or for fines, penalties or restrictions
resulting from or based upon (a) the existence, or the
continuation of the existence, of a Release (including,
without limitation, sudden or non-sudden accidental or non-
accidental Releases) of, or exposure to, any Hazardous
Material or other substance, chemical, material, pollutant,
contaminant, odor, audible noise, or other Release in, into
or onto the environment (including, without limitation, the
air, soil, surface water or groundwater) at, in, by, from or
related to the Facilities or any activities conducted
thereon; (b) the environmental aspects of the
transportation, storage, treatment or disposal of Hazardous
Materials in connection with the operation of the
Facilities; or (c) the violation, or alleged violation, of
any Environmental Laws, Orders or Permits of or from any
Governmental Body relating to environmental matters
connected with the Facilities.
"Environmental Law" means any Law concerning
Releases into any part of the natural environment, or
activities that might result in damage to the natural
environment, or any Law that is concerned in whole or in
part with the natural environment and with protecting or
improving the quality of the natural environment and
protecting public and employee health and safety and
includes, but is not limited to, the Comprehensive
Environmental Response, Compensation, and Liability Act
("CERCLA") (42 U.S.C. 9601 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. 6901 et
seq.), the Clean Water Act (33 U.S.C. 1251 et seq.), the
Clean Air Act (42 U.S.C. 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.), the
Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. 136 et seq.) and the Occupational Safety and Health
Act (29 U.S.C. 651 et seq.) ("OSHA"), as such laws have
been amended or supplemented, and the regulations
promulgated pursuant thereto, and any and all analogous
state or local statutes, and the regulations promulgated
pursuant thereto, and any and all treaties, conventions and
environmental public and employee health and safety statutes
and regulations or analogous requirements of non-United
States jurisdictions in which Hexcel or any of its
Subsidiaries conducts any business.
"Environmental Permit" means any Permit, approval,
authorization, license, variance, registration, or
permission required under any applicable Environmental Laws
and all supporting documents associated therewith.
"ERISA" is defined in Section 2.13(a).
"ERISA Affiliate" is defined in Section 2.13(b).
"Exchange Act" is defined in Section 2.8.
"Facilities" means real property owned, leased or
operated by Hexcel or any of the Subsidiaries.
"FASB 95" means statement of Financial Accounting
Standard No. 95 promulgated by the Financial Accounting
Standards Board.
"Final Order" has the meaning specified in the
Plan.
"Financial Statement" is defined in Section 2.5.
"First Closing" is defined in Section 1.3.
"First Closing Date" is defined in Section 1.3.
"Fully Diluted New Shares" means, without
duplication, the Initial Shares, the Offered Shares and all
shares of New Common Stock issuable under Sections 4.6, 4.9,
4.10 and 4.11 of the Plan.
"Governmental Body" means any government or
governmental or regulatory body thereof, or political
subdivision thereof, whether federal, state, local or
foreign, or any agency, instrumentality or authority
thereof, or any court or arbitrator (public or private).
"Hazardous Materials" means any substance,
material or waste which is regulated by any local, state or
federal Governmental Body in the jurisdiction in which
Hexcel or any Subsidiary conducts business, including,
without limitation, any material or substance which is
defined as a "hazardous waste," "hazardous material,"
"hazardous substance," "extremely hazardous waste" or
"restricted hazardous waste," "subject waste,"
"contaminant," "toxic waste" or "toxic substance" under any
provision of Environmental Law, including but not limited
to, petroleum products, asbestos and polychlorinated
biphenyls.
"Hexcel" is defined in the opening paragraph of
this Agreement.
"Hexcel Indemnified Parties" is defined in Section
9.1(b).
"HSR Act" is defined in Section 7.1(c).
"Initial Shares" is defined in Section 1.1.
"Intellectual Property" is defined in Section
2.11.
"ISRA" means the New Jersey Industrial Site
Recovery Act.
"Law" means any federal, state, local or foreign
law (including common law), statute, code, ordinance, rule,
regulation or other requirement or guideline, including
environmental, ERISA and laws with respect to any and all
Taxes.
"Legal Proceeding" means any judicial,
administrative or arbitral actions, suits, proceedings
(public or private), claims or governmental proceedings.
"Lien" means any lien, pledge, hypothecation,
levy, mortgage, deed of trust, security interest, claim,
lease, charge, option, right of first refusal, easement, or
other real estate declaration, covenant, condition,
restriction or servitude, transfer or voting restriction
under any shareholder or similar agreement, encumbrance or
any other restriction or limitation whatsoever.
"Losses" is defined in Section 9.1(a).
"Material Adverse Change" means any material
adverse change in the business, properties, results of
operations, prospects or condition (financial or otherwise)
of Hexcel and its Subsidiaries taken as a whole.
"Material Subsidiaries" means Hexcel S.A. (a
Belgian corporation) and Hexcel S.A. (a French corporation).
"Multiemployer Plan" is defined in Section
2.13(a).
"Multiple Employer Plan" is defined in Section
2.13(a).
"New Common Stock" means shares of common stock,
par value $.01 per share, of reorganized Hexcel.
"1986 Rights Agreement" means the Rights
Agreement, dated August 14, 1986, between Hexcel and The
Bank of California.
"Offered Shares" is defined in the third recital.
"Old Common Stock" means currently issued and
outstanding shares of common stock, par value $.01 per
share, of Hexcel.
"Order" means any order, injunction, judgment,
decree, ruling, writ, assessment or arbitration award.
"PBGC" is defined in Section 2.13(d).
"Permits" means any approval, authorization,
consent, license, permit or certificate of or by any
Governmental Body.
"Permitted Exceptions" means (a) statutory liens
for current taxes, assessments or other governmental charges
not yet delinquent or the amount or validity of which is
being contested in good faith by appropriate proceedings,
provided an appropriate reserve is established therefor; (b)
mechanics', carriers', workers', repairers' and similar
Liens arising or incurred in the ordinary course of business
that are not material to the business, operations and
financial condition of the property so encumbered or Hexcel
and the Subsidiaries taken as a whole; (c) zoning,
entitlement and other land use and environmental regulations
by Governmental Bodies, provided that such regulations have
not been violated; and (d) such other imperfections in
title, charges, easements, restrictions and encumbrances
that in the aggregate could not reasonably result in a
Material Adverse Change.
"Permitted Liens" means (a) those Liens disclosed
in the Disclosure Statement; (b) Liens in favor of CIT
Group/Business Credit, Inc. securing Hexcel's debtor-in-
possession financing; (c) Liens securing the financing
contemplated by Section 7.1(g); (d) capital leases; (e)
Liens which in the aggregate are not material to Hexcel and
its Subsidiaries taken as a whole; (f) those Liens related
to the Belgian financing referred to Section 7.1(j); (g)
pledges or deposits securing obligations under workers'
compensation, unemployment insurance, social security or
public liability laws or similar legislation; (h) pledges or
deposits securing utility payments, bids, tenders, contracts
(other than contracts for the payment of borrowed money) or
leases to which Hexcel or any of its Subsidiaries is a party
as lessee, made in the ordinary course of business; (i)
deposits securing public or statutory obligations of Hexcel
or any of its Subsidiaries; (j) deposits securing or in lieu
of surety, appeal or customs bond or proceedings to which
Hexcel or any of its Subsidiaries is a party; (k) Liens
arising by statute; (l) Liens securing indebtedness
reflected in the Disclosure Statement; (m) Liens arising
from or in connection with any leases of real or personal
property; (n) any agreement regarding the voting of stock
owned by Hexcel in American Body Armor; (o) any voting or
other restrictions applicable to joint venture interests
owned by Hexcel or its Material Subsidiaries; and (p) Liens
on inventory purchased by Hexcel under consignment
arrangements.
"Person" means any individual, corporation,
partnership, firm, joint venture, association, joint-stock
company, trust, unincorporated organization, Governmental
Body or other entity.
"Plan" means Hexcel's plan of reorganization,
dated July 27, 1994, a copy of which has been delivered to
Purchaser prior to the execution of this Agreement.
"Purchase Price" is defined in Section 1.1.
"Purchaser" is defined in the opening paragraph of
this Agreement.
"Purchaser Indemnified Parties" is defined in
Section 9.1(a).
"Purchaser Representatives" is defined in Section
4.1.
"Purchaser SEC Documents" is defined in Section
3.6.
"Qualified Plan" is defined in Section 2.13(c).
"Registration Rights Agreement" means the
Registration Rights Agreement in substantially the form of
Exhibit V hereto.
"Release" means any release, spill, effluent,
emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching, or migration into the indoor
or outdoor environment, or into or out of any property
owned, operated or leased by Hexcel or any Subsidiary,
including the movement of any Hazardous Material or other
substance through or in the air, soil, surface water,
groundwater, or property.
"Remedial Action" means all actions, including,
without limitation, any capital expenditures, required or
voluntarily undertaken to (a) clean up, remove, treat, or in
any other way address any Hazardous Material or other
substance in the indoor or outdoor environment; (b) prevent
the Release or threat of Release, or minimize the further
Release of any Hazardous Material or other substance so it
does not migrate or endanger or threaten to endanger public
health or welfare of the indoor or outdoor environment; (c)
perform pre-remedial studies and investigations or post-
remedial monitoring and care; or (d) bring any Facility into
compliance with all Environmental Laws and Environmental
Permits.
"Rights Offering" is defined in the third recital.
"SEC" is defined in Section 2.8.
"SEC Documents" is defined in Section 2.8.
"Second Closing" is defined in Section 1.3(b).
"Second Closing Date" is defined in Section
1.3(b).
"Securities Act" is defined in Section 2.8.
"Software" means any electronic data processing
system, information system, computer software program,
program specification chart, procedure, source code, input
data, routine, database, report layout, format, record file
layout, diagram, functional specification, narrative
description, flow chart or other related material.
"Standby Purchase Price" is defined in Section
1.1.
"Submission Date" is defined in Section 5.2(a).
"Subsidiary" means any Person of which a majority
of the outstanding voting securities are owned directly or
indirectly by Hexcel.
"Tax Affiliates" is defined in Section 2.9(a).
"Taxes" means all taxes, charges, fees, imposts,
levies or other assessments, including, without limitation,
all net income, gross receipts, capital, sales, use, ad
valorem, value added, transfer, franchise, profits,
inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise,
severance, stamp, occupation, property and estimated taxes,
customs duties, fees, assessments and charges of any kind
whatsoever, together with any interest and any penalties,
fines, additions to tax or additional amounts imposed by any
taxing authority (domestic or foreign) and shall include any
transferee liability in respect of Taxes.
"Tax Return" means all returns, declarations,
reports, estimates, information returns and statements
required to be filed in respect of any Taxes.
"Unpurchased Shares" is defined in the fourth
recital.
10.3 Further Assurances. Hexcel and Purchaser
each agrees to execute and deliver such other documents or
agreements as may be necessary or desirable for the
implementation of this Agreement and the consummation of the
transactions contemplated hereby.
10.4 Restrictive Legend; Resales. All
certificates representing shares issued pursuant to this
Agreement shall have stamped, printed or typed thereon a
legend substantially in the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD, OFFERED FOR SALE OR OTHERWISE TRANSFERRED
IN THE ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM."
Purchaser agrees that it will not sell or otherwise dispose
of any of such shares except in compliance with applicable
law. Purchaser shall be entitled to have such legend
removed as provided in the Registration Rights Agreement.
10.5 Entire Agreement; Amendments and Waivers.
This Agreement (including the schedules and exhibits
hereto), together with the related confidentiality agreement
to which Purchaser is subject, represents the entire
understanding and agreement between the parties hereto with
respect to the subject matter hereof and can be amended,
supplemented or changed, and any provision hereof can be
waived, only by written instrument making specific reference
to this Agreement signed by the parties hereto. No action
taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking
such action of compliance with any representation, warranty,
covenant or agreement contained herein. The waiver by any
party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a further or continuing
waiver of such breach or as a waiver of any other or
subsequent breach. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of such right, power or
remedy by such party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive
of any other remedies provided by law.
10.6 Governing Law. This Agreement shall be
governed by and construed in accordance with the law of the
State of New York without giving effect to the principles of
conflict of laws thereunder, except to the extent
inconsistent with the Bankruptcy Code.
10.7 Table of Contents and Headings. The table
of contents and section headings of this Agreement are for
reference purposes only and are to be given no effect in the
construction or interpretation of this Agreement.
10.8 Notices. All notices and other
communications under this Agreement shall be in writing and
shall be deemed given when delivered personally, telecopied
or mailed by certified mail, return receipt requested, to
the parties at the following addresses (or to such other
address as a party may have specified by notice given to the
other party pursuant to this provision):
If to Hexcel, to:
Hexcel Corporation
5794 W. Las Positas Boulevard
Pleasanton, California 94588
Attention: Rodney Jenks, Esq.
Facsimile: (510) 734-8611
With a copy to:
Kronish, Lieb, Weiner & Hellman
1114 Avenue of the Americas
New York, New York 10036
Attention: Chet F. Lipton, Esq.
Facsimile: (212) 479-6275
If to Purchaser, to:
Mutual Series Fund, Inc.
51 John F. Kennedy Parkway
Short Hills, New Jersey 07078
Attention: Peter Langerman
Facsimile: (201) 912-0147
With a copy to:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attention: Ronald F. Daitz, Esq.
Facsimile: (212) 310-8007
All notices are effective upon receipt or upon refusal if
properly delivered.
10.9 Knowledge. The phrase "best knowledge", the
word "knowledge" and similar qualifications used herein with
respect to a Person, means the knowledge of the executive
officers of such Person after due investigation.
10.10 Severability. If any provision of this
Agreement is invalid or unenforceable, the balance of this
Agreement shall remain in effect.
10.11 Binding Effect; Assignment. This Agreement
shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted
assigns. Nothing in this Agreement shall create or be
deemed to create any third party beneficiary rights in any
Person or entity not a party to this Agreement. No
assignment of this Agreement or of any rights or obligations
hereunder may be made by either Hexcel or Purchaser (by
operation of law or otherwise) without the prior written
consent of the other party hereto and any attempted
assignment without the required consent shall be void. Upon
any such permitted assignment, the references in this
Agreement to Purchaser shall also apply to any such assignee
unless the context otherwise requires.
10.12 No Third Party Beneficiary. It is
understood and agreed between the parties hereto that this
Agreement and the representations, warranties and covenants
made herein are made expressly and solely for the benefit of
the other party hereto (or their respective successors or
permitted assigns), and that no other Person shall be
entitled or be deemed to be a third-party beneficiary of any
party's rights under this Agreement.
10.13 Amendments to Plan and Disclosure
Statement. Amendments to the Plan or the Disclosure
Statement shall not be deemed to modify the parties'
obligations hereunder, Hexcel's representations or
warranties contained in this Agreement or any of the
conditions contained herein to Purchaser's obligation to
consummate the First Closing or the Second Closing, unless
expressly agreed to by Purchaser in writing in the
particular case.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first written
above.
HEXCEL CORPORATION
By: /s/ Robert D. Krumme
Vice Chairman
MUTUAL SERIES FUND INC.
By: /s/ Peter A. Langerman
Executive Vice President
<PAGE>
EXHIBITS AND SCHEDULES OMITTED
<PAGE>
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
DATED AS OF _______ __, 1994
BETWEEN
HEXCEL CORPORATION
AND
MUTUAL SERIES FUND INC.
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS 1
Section 1.1. Definitions 1
ARTICLE II
REGISTRATION RIGHTS 3
Section 2.1. Registration upon Request 3
Section 2.2. Piggyback Registration 4
Section 2.3. Registration Procedures 7
Section 2.4. Preparation; Reasonable Investigation 16
Section 2.5. Indemnification 16
Section 2.6. Contribution 20
Section 2.7. Nominees of Beneficial Owners 21
Section 2.8. Restrictions on Sale of Securities by the
Company and Others 22
ARTICLE III
OTHER TRANSFERS 22
Section 3.1. Removal of Restrictive Legends 22
ARTICLE IV
MISCELLANEOUS 23
Section 4.1. Effectiveness 23
Section 4.2. Submission to Jurisdiction; Consent to
Service of Process 23
Section 4.3. Specific Enforcement; Other Remedies 23
Section 4.4. Severability 24
Section 4.5. Notices 24
Section 4.6. Entire Agreement 25
Section 4.7. Amendments 25
Section 4.8. Descriptive Headings; References 25
Section 4.9. Governing Law 25
Section 4.10. Successors and Assigns 25
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of ____ __,
1994 (the "Agreement") between HEXCEL CORPORATION, a
Delaware corporation (the "Company"), and MUTUAL SERIES FUND
INC., a Maryland corporation ("Mutual").
W I T N E S S E T H:
WHEREAS, the Company and Mutual have entered into
a Stock Subscription and Standby Purchase Agreement dated
July __, 1994 (the "Subscription Agreement"), pursuant to
which, upon the terms and subject to the conditions set
forth therein, the Company issued and sold, and Mutual has
subscribed for and purchased, shares of the Company's common
stock; and
WHEREAS, to induce Mutual to enter into the
Subscription Agreement, the Company has agreed to provide
the registration rights set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual covenants and agreements herein
contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. (a) Unless otherwise
defined herein, capitalized terms used herein have the
meanings set forth in the Subscription Agreement.
(b) "Registration Expenses" means all out-of-
pocket expenses incident to the Company's performance of, or
compliance with, Article II hereof, including, without
limitation, all registration and filing fees (including
filing fees with respect to the SEC and the National
Association of Securities Dealers, Inc.), all fees and
expenses of qualifying under or complying with securities or
"blue sky" laws in United States jurisdictions (including
fees and disbursements of underwriters' counsel in
connection with "blue sky" qualifications, including any
memorandum or survey with respect thereto) and determination
of the Registrable Securities eligibility for investment
under the laws of the jurisdictions designated by the
managing underwriter or underwriters, all listing fees, all
printing expenses, all messenger, telephone and delivery
expenses, all registrars' and transfer agents' fees, the
fees and disbursements of counsel for the Company, of its
independent public accountants, including the expenses of
any audits and/or 'cold comfort' letters required by or
incident to such performance and compliance, and of other
Persons retained by the Company and any fees and
disbursements of underwriters customarily paid by issuers of
securities but excluding (x) fees and disbursements of
separate counsel to any seller of Registrable Securities,
and (y) discounts, commissions or fees of underwriters,
selling brokers, dealer managers, sales agents or similar
securities industry professionals relating to the
distribution of Registrable Securities and applicable
transfer taxes, if any, which shall be borne by the sellers
of the Registrable Securities being registered in all cases.
(c) "Registrable Securities" means (i) any and
all shares of New Common Stock ("Shares") received by Mutual
on the First Closing Date and the Second Closing Date and
(ii) any other securities issued or issuable with respect to
any Shares by way of a stock dividend or stock split or in
connection with a combination, exchange, reorganization,
recapitalization or reclassification of the Company's
securities or pursuant to a merger, consolidation or other
similar business combination involving the Company. As to
any particular Registrable Securities, such securities shall
cease to constitute Registrable Securities when (i) a
registration statement with respect to the sale of such
securities shall have been declared effective under the
Securities Act and such securities shall have been disposed
of in accordance with a method of disposition contemplated
by the registration statement, (ii) such securities shall
have been sold in satisfaction of all applicable conditions
to the resale provisions of Rule 144 under the Securities
Act (or any successor provision thereto), (iii) such
securities shall have been transferred, new certificates
evidencing such securities without legends restricting
further transfer shall have been delivered by the Company,
and subsequent public distribution of such securities shall
neither require registration under the Securities Act nor
qualification (or any similar filing) under any state
securities or "blue sky" law then in effect, or (iv) such
securities shall have ceased to be outstanding.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1. Registration upon Request. (a)
Subject to the provisions of this Section 2.1, at any time
during the period commencing on the First Closing Date and
ending on the earlier of (x) the fifth anniversary of the
Second Closing Date and (y) the first date on which there
are no Registrable Securities (the "Demand Registration
Period"), upon the written request of Mutual requesting that
the Company effect the registration under the Securities Act
of Registrable Securities representing (i) the greater of
(A) at least 20% of the then outstanding Registrable
Securities or (B) at least 10% of the Registrable Securities
outstanding on the Second Closing Date or (ii) all of the
Registrable Securities then held by Mutual, and specifying
the intended method or methods of disposition of such
Registrable Securities, the Company shall use its best
efforts to effect the registration of such Registrable
Securities under the Securities Act, as soon as possible,
for the disposition (in accordance with such intended method
or methods) of the Registrable Securities so to be
registered (any such registration is hereinafter referred to
as a "Demand Registration").
(b) The Company shall be required to effect only
three Demand Registrations; provided, however, that in the
event Mutual acquires shares of New Common Stock on the
Second Closing Date for an aggregate purchase price of at
least (i) $7,000,000, if Class 9 under the Plan accepts the
Plan in accordance with the provisions of section 1126 of
the Bankruptcy Code or (ii) $5,000,000, if Class 9 under the
Plan does not accept the Plan in accordance with the
provisions of section 1126 of the Bankruptcy Code, the
Company shall be required to effect an additional two Demand
Registrations.
(c) The Company shall not be deemed to have
effected a Demand Registration pursuant to this Section 2.1
unless the registration statement in respect thereof is
declared effective under the Securities Act; provided,
however, that a Demand Registration shall be deemed to have
been effected by the Company if the registration does not
become effective after the Company has filed a registration
statement with respect thereto solely due to the refusal of
Mutual to proceed.
(d) If the Company shall have previously effected
a Demand Registration pursuant to this Section 2.1, or if
any Registrable Securities of Mutual are registered in a
Piggyback Registration (as hereinafter defined) pursuant to
Section 2.2 hereof, the Company shall not be required to
effect a subsequent Demand Registration until a period of at
least 180 days shall have elapsed from the effective date of
the registration statement used in connection with such
previous registration statement.
(e) The Company shall pay all Registration
Expenses in connection with the registration of Registrable
Securities pursuant to this Section 2.1.
Section 2.2. Piggyback Registration. (a) If the
Company at any time prior to the expiration of the Demand
Registration Period proposes to register or, upon receipt of
Mutual's request for a Demand Registration the Company
desires to register, any of its equity securities under the
Securities Act (other than a registration on Form S-4 or S-8
or the equivalent thereof) to be offered for cash or cash
equivalents in a managed public offering, it shall each such
time give prompt written notice to each holder of
Registrable Securities who has agreed to be bound by this
Agreement, as provided in Section 4.10, of its intention to
do so, describing such securities and specifying the form
and manner and the other relevant facts involved in such
proposed registration (including, without limitation, the
identity of the managing underwriter and whether such
offering will be pursuant to a "best efforts" or "firm
commitment" underwriting). Upon the written request of any
such holder delivered to the Company within 20 days after
such notice shall have been given to such holder (which
request shall specify the Registrable Securities intended to
be disposed of by such holder and the intended method of
disposition thereof), the Company shall use its best efforts
to effect the registration under the Securities Act, as
expeditiously as is reasonable, of all Registrable
Securities that the Company has been so requested to
register by such holder (in accordance with the intended
methods of distribution thereof as aforesaid) (such
registration being hereafter referred to as a "Piggyback
Registration"); provided, however, that:
(i) (A) if, at any time after
giving such written notice of its intention to register any
of such securities and prior to the effective date of the
registration statement filed in connection with such
Piggyback Registration, the Company shall determine for any
reason not to register or to delay the registration of such
securities, the Company may, at its election, give written
notice of such determination to each holder of Registrable
Securities requesting inclusion of Registrable Securities in
such registration, and (x) in the case of a determination
not to register, the Company shall be relieved of its
obligation to register any Registrable Securities in
connection with such Piggyback Registration (but not from
its obligation to pay the Registration Expenses in
connection therewith to the extent provided in Section
2.2(b)), without prejudice, however, to the right of Mutual
to request that such registration be effected as a Demand
Registration under and pursuant to all of the terms and
conditions of Section 2.1, and (y) in the case of a
determination to delay registering, the Company shall be
permitted to delay registering any Registrable Securities,
for the same period as the delay in registering such other
securities, or (B) in the event that the registration
statement has been declared effective and the Company
determines that a Disadvantageous Condition (as hereinafter
defined) exists, upon the delivery of written notice to each
such holder, the Company shall, subject to discontinuance of
sales of all other securities covered by such registration
statement, be entitled to suspend the effectiveness of such
statement or, without suspending such effectiveness, to
request that each such holder forthwith discontinue the
disposition of such Registrable Securities and each such
holder agrees that it will discontinue the disposition of
such Registrable Securities pursuant to such registration
statement and thereupon the Company shall be relieved of its
obligation under this Section 2.2 with respect to such
registration (but not from its obligation to pay the
Registration Expenses in connection therewith to the extent
provided in Section 2.2(b)), without prejudice, however, to
the rights of Mutual to request that such registration be
effected as a Demand Registration under and pursuant to all
of the terms and conditions of Section 2.1;
(ii) if the managing underwriter of
such proposed Piggyback Registration offering shall advise
the Company in writing that, in the judgment of such
managing underwriter, the inclusion in any registration
statement pursuant to this Section 2.2 of some or all of the
Registrable Securities sought to be registered by Persons
other than the Company creates a substantial risk that the
proceeds or price per unit the Company or Persons other than
the Company will derive from such registration will be
reduced and/or that the number of securities to be
registered (including those sought to be registered at the
instance of the Company and any other party entitled to
participate in such registration) is too large a number to
be reasonably sold, or the managing underwriter of such
underwritten offering shall inform the Company in writing of
its opinion that the number of securities requested to be
included in such registration would materially affect its
ability to effect such offering (such opinion to state the
reasons therefor and the approximate number of securities
which may be included in such offering without such effect),
the Company will include in such registration to the extent
of the number which the Company is so advised can be sold in
such offering the number of securities sought to be
registered by each seller (which term shall include the
Company and Mutual and any other holder of securities
included in such registration) (A) first, the securities the
Company proposes to sell, (B) second, the Registrable
Securities held by Mutual requested to be included in such
registration, (C) third, the Registrable Securities held by
other holders of Registrable Securities requested to be
included in such registration, pro rata, based on the
respective holdings of Registrable Securities requested to
be included in such registration by such other holders (D)
fourth the securities proposed to be sold by any other
holder;
(iii) if the managing underwriter of
such proposed Piggyback Registration offering shall advise
the Company in writing that, in the judgment of such
managing underwriter, the inclusion of any Registrable
Securities in such offering of a type, class or series, as
the case may be, different from that of the securities
originally intended to be included in such offering would
adversely affect the success of the offering of such
securities originally intended to be so included, then the
Company shall promptly advise Mutual thereof and may
require, by written notice to Mutual accompanying such
advice, that such different Registrable Securities be
excluded from such offering to the extent the inclusion
thereof could adversely affect such offering; and
(iv) the Company shall not be
obligated to effect any registration of Registrable
Securities under this Section 2.2 that is incidental to the
registration of any of its securities in connection with any
merger, acquisition, exchange offer, dividend reinvestment
plan or stock option or other employee or non-employee
director benefit plan or consultant benefit plan (regardless
of whether or not on Form S-4 or S-8).
(b) The Company shall pay all Registration
Expenses in connection with the registration of Registrable
Securities pursuant to this Section 2.2.
Section 2.3. Registration Procedures. (a) If and
whenever the Company is required to use its best efforts to
effect the registration of any Registrable Securities under
the Securities Act as provided in Sections 2.1 and 2.2, the
Company shall, subject to the limitations otherwise provided
in this agreement, as expeditiously as is reasonable:
(i) prepare and file with the SEC
on any appropriate form a registration statement with
respect to such Registrable Securities and use its best
efforts to cause such registration statement to become
effective; provided, however, that before filing a
registration statement or prospectus or any amendments or
supplements thereto, including documents incorporated by
reference after the initial filing of any registration
statement, the Company will furnish to counsel selected by
Mutual and the underwriters copies of all such documents
proposed to be filed sufficiently in advance of filing to
provide them with a reasonable opportunity to review such
documents and comment thereon;
(ii) prepare and file with the SEC
such amendments (including post-effective amendments) and
supplements to such registration statement and the
prospectus used in connection therewith as may be necessary
to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities and other
securities covered by such registration statement until the
earlier of (A) such time as all such Registrable Securities
and other securities have been disposed of in accordance
with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement and
(B) (x) in the case of any Demand Registrations and
Piggyback Registrations, the expiration of 90 days from the
date such registration statement first becomes effective
(unless the Registrable Securities registered thereunder
have been sold or disposed of prior to the expiration of
such 90-day period) (exclusive of any period during which
Mutual was prohibited from disposition of Registrable
Securities by reason of the occurrence of any event
described in Sections 2.3(e)(iv), (v) or (vii) (to the
extent that the occurrence of any such events shall have
interfered with the distribution) or any period during which
the prospectus included therein shall not meet the
requirements of Section 10 of the Securities Act);
(iii) furnish to each seller and to
any underwriter of such Registrable Securities such number
of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the
prospectus included in such registration statement
(including each preliminary prospectus and any summary
prospectus), in conformity with the requirements of the
Securities Act, such documents incorporated by reference in
such registration statement or prospectus, and such other
documents, as such seller or underwriter may reasonably
request in order to facilitate the sale or disposition of
such Registrable Securities;
(iv) use its best efforts to
register or qualify all Registrable Securities and other
securities covered by such registration statement under such
other securities or "blue sky" laws of such jurisdictions in
the United States as each seller or any underwriter shall
reasonably request, and do any and all other acts and things
that may be necessary to enable such seller or any
underwriter to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such
registration statement, except that the Company shall not
for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction
wherein it is not so qualified, or subject itself to
taxation in respect of doing business in any such
jurisdiction, or to consent to general service of process in
any such jurisdiction;
(v) cause such Registrable
Securities covered by such registration statement to be
registered with or approved by such other governmental
agencies or authorities in the United States as may be
necessary to enable each seller or any underwriter to
consummate the disposition of such Registrable Securities;
(vi) furnish to each seller of
Registrable Securities a signed counterpart, addressed to
such seller and the underwriters of (1) an opinion of
counsel for the Company, dated the date of the closing under
the underwriting agreement, and (2) a "cold comfort" letter
signed by the independent public accountants who have issued
a report on the Company's financial statements included in
such registration statement, covering substantially the same
matters with respect to such registration statement (and the
prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to
the date of such financial statements, as are customarily
covered in opinions of issuers' counsel and in accountants'
letters delivered to underwriters in underwritten public
offerings of securities;
(vii) promptly notify each seller of
Registrable Securities, their counsel and the managing
underwriters, if any, and (if requested by any such Person)
confirm such notice in writing, (A) when a prospectus or any
prospectus supplement or post-effective amendment relating
to such registration statement has been filed and, with
respect to a registration statement referred to in Section
2.1 or 2.2 or any post-effective amendment, when the same
has become effective, (B) of any request by the SEC for
amendments or supplements to a registration statement
referred to in Section 2.1 or 2.2 or related prospectus or
for additional information, (C) of the issuance by the SEC
of any stop order suspending the effectiveness of a
registration statement referred to in Section 2.1 or 2.2 or
the initiation of any proceedings for that purpose, (D) if
at any time the representations and warranties of the
Company contained in agreements contemplated by Section
2.3(c) cease to be true and correct and (E) of the receipt
by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(viii) in the event of the issuance
of a stop order suspending the effectiveness of a
registration statement referred to in Section 2.1 or 2.2 or
the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction, make
reasonable efforts to obtain the withdrawal of such stop
order or the lifting of such suspension as soon as
reasonably practicable;
(ix) immediately notify each seller
of Registrable Securities covered by such registration
statement, their counsel and the managing underwriters at
any time when a prospectus relating thereto is required to
be delivered under the Securities Act, of the happening of
any event as a result of which the prospectus included in
such registration statement (or deemed to be included in
such registration statement if the registration statement,
at the time it is declared effective, omits certain
information pursuant to Rule 430A of the Securities Act), as
then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then
existing or if it is necessary to amend or supplement such
prospectus to comply with law, and at the request of any
such seller and any underwriter prepare and furnish to such
seller and the underwriters a reasonable number of copies of
a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not
include an 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 not misleading in
the light of the circumstances then existing and shall
otherwise comply in all material respects with law and so
that such prospectus, as amended or supplemented, shall
comply with law;
(x) comply with all applicable
rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, but not
later than 50 days after the close of the period covered
thereby (105 days in the case when the period covered
corresponds to a fiscal year of the Company), earnings
statements of the Company (satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 as
promulgated thereunder), covering a period of 12 months
beginning after the effective date of the registration
statement (but beginning not later than the first day of the
Company's fiscal quarter next following such effective
date);
(xi) use its best efforts to cause
all Registrable Securities covered by such registration
statement as are of the same class as a class then listed on
such exchange to be listed on a national securities exchange
or approved for trading in the National Market System if
such Registrable Securities are not already so listed or so
approved and on each securities exchange on which similar
securities issued by the Company are then listed, if the
listing of such Registrable Securities is then permitted
under the rules of such exchange;
(xii) provide a transfer agent and
registrar for all such Registrable Securities covered by
such registration statement not later than the effective
date of such registration statement;
(xiii) issue to any underwriter to
which any seller may sell such Registrable Securities in
connection with any such registration (and to any direct or
indirect transferee of any such underwriter) certificates
representing such Registrable Securities without the legends
described in Section 10.4 of the Subscription Agreement.
Upon the Company's request, each seller of
Registrable Securities as to which any registration is being
effected shall promptly furnish the Company with such
information regarding such seller and the distribution of
such securities as the Company may reasonably request in
writing and as shall be required by law or by the SEC in
connection therewith.
Mutual shall have the right to require the
insertion of language in the registration statement covering
such Registrable Securities as Mutual desires to sell, in
form and substance satisfactory to Mutual, to the effect
that the holding by Mutual of such securities is not to be
construed as a recommendation by Mutual of the investment
quality of the Company's securities covered thereby, or in
the event that such reference to Mutual by name or otherwise
is not required by the Securities Act or any similar Federal
statute then in force or by any regulations thereunder, or
by the SEC or any "blue sky" laws, or any regulations
thereunder, for any jurisdiction in which such securities
are offered, the deletion of the reference to Mutual.
(b) In the event that, (A) the Board of Directors
of the Company, or an appropriate committee thereof,
determines, in its good faith judgment, that the
registration of Registrable Securities pursuant to Section
2.1 (x) would interfere in a material respect with any
pending or anticipated material merger, acquisition or
divestiture involving the Company or either Material
Subsidiary or (y) would materially and adversely impact any
material financing activity or (B) if 66-2/3% of the
directors present at a duly convened meeting of the Board of
Directors at which a quorum is present determines that, in
its good faith judgment, the registration of Registrable
Securities would require the disclosure of material
information which the Company has a bona fide and
significant business purpose for preserving as confidential,
or (C) if financial statements required to be included or
incorporated in the registration statement have not been
prepared or are not otherwise available at the time (each
event referred to in clause (A), (B) or (C) of this Section
2.3(b) being a "Disadvantageous Condition"), then,
notwithstanding any other provision of this Article II, upon
the giving of a written notice (a "Delay Notice") to such
effect to each such seller, the Company (1) in the event
that the registration statement has been filed, but has not
yet been declared effective, shall be entitled to cause such
registration statement to be withdrawn and shall be entitled
not to file a substitute registration statement, or (2) in
the event that the registration statement has been declared
effective, shall be entitled to suspend the effectiveness of
such statement or, without suspending such effectiveness, to
request that the sellers of Registrable Securities forthwith
discontinue the disposition of such Registrable Securities
or (3) in the event no registration statement has yet been
filed, shall be entitled not to file any such registration
statement, until, in the case of each of (1), (2) and (3)
above, the earlier of (the "Resumption Date") (i) the
expiration of a 90-day period from the date the Delay Notice
was given or (ii) the date on which (w) the Company next
files with the SEC a report or makes any other public
disclosure of the information referred to in clause (B) of
this Section 2.4(b) or otherwise determines that there is no
bona fide business purpose for keeping such information
confidential, (x) the Board of Directors determines that the
Disadvantageous Condition referred to in clause (A) of this
Section 2.3(b) no longer exists, or (y) the financial
statements referred to in clause (C) of this Section 2.4(b)
have been prepared or are otherwise available. Promptly
following the Resumption Date, the Company shall deliver a
notice (a "Resumption Notice") to each seller of Registrable
Securities to be included in such registration statement
stating that such public disclosure or determination has
been made or such financial statements have been prepared or
are available, as the case may be. If a registration
statement was withdrawn or was not filed, the Company shall
use its best efforts to effect the registration under the
Securities Act, as soon as possible after the date the
Resumption Notice was given, of the Registrable Securities
included or to be included in such registration statement,
unless Mutual by written notice (the "Discontinuance
Notice") to the Company requests that the Company not effect
such registration. If a registration statement was declared
effective and either (i) the period between the Delay Notice
and the Resumption Date exceeds 60 days, or (ii) Mutual
determines in good faith that there has been an adverse
change in market conditions for the Registrable Securities
between the Delay Notice and the Resumption Date, then
Mutual may, by delivery of a Discontinuance Notice, request
the Company to withdraw such registration statement and such
registration statement shall not be deemed to have been
effected by the Company for the purposes of Section 2.1
hereof. If a registration statement was declared effective
and is not withdrawn pursuant to a Discontinuance Notice or
otherwise, the Company shall furnish, as promptly as
reasonably practicable after the date the Resumption Notice
was given, to each seller of such Registrable Securities
such number of copies of the prospectus included in such
registration statement (including any amendments or
supplements thereto), which prospectus (as amended or
supplemented) shall be in conformity with the requirements
of the Securities Act, as such seller may reasonably request
in order to facilitate the sale or disposition of such
Registrable Securities.
(c) If requested by the underwriters for any
offering of Registrable Securities pursuant to a
registration requested under Section 2.1 or 2.2, the Company
shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such
other terms and conditions as are customarily contained in
underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities
and contribution to the effect and to the extent provided in
Section 2.5 and the provision of opinions of counsel and
accountants' letters to the effect and to the extent
provided in Section 2.3(a)(vi) and, in the case of a
registration under Section 2.1 or 2.2, to be reasonably
satisfactory in form, to the extent then customary in
registration right agreements, and substance to Mutual. In
the case of a registration under Section 2.1 or 2.2 the
sellers shall be a party to any such underwriting agreement
and the representations and warranties by, and other
agreements on the part of, the Company to and for the
benefit of the underwriters also shall be made to and for
the benefit of the sellers.
(d) In the event of any underwritten offering
under a registration pursuant to Section 2.1 or 2.2, Mutual
agrees, if so required by the managing underwriters and to
the extent timely notified in writing by the Company or by
the managing underwriter or underwriters, not to effect any
public sale or distribution (including any sale pursuant to
Rule 144 under the Securities Act) of Registrable Securities
or securities convertible into, or exchangeable or
exercisable for, any Registrable Securities (other than as
part of such offering) within seven days prior to the
effective date of the registration statement with respect to
such offering and 150 days after the effective date of such
registration statement.
(e) Each seller of Registrable Securities will:
(i) execute a power of attorney
appointing one or more attorneys designated by the sellers
of the majority of the Registrable Securities included in
the registration statement, which attorney shall be
authorized, on customary terms, to execute any agreement
(including in an underwritten offering an underwriting
agreement in customary form) on behalf of each such seller
and to otherwise act for such seller in connection with the
offering of Registrable Securities;
(ii) enter into any agreement
(including in an underwritten offering an underwriting
agreement in customary form, it being understood that, if in
the Company's reasonable judgment representations and
warranties by such sellers are necessary, such agreement may
contain such representations and warranties by such sellers
as are customarily contained in underwriting agreements with
respect to secondary distributions) with the Company, the
other sellers of Registrable Securities and the
underwriters;
(iii) execute and complete all
questionnaires and other documents required by such power of
attorney or such agreement to be executed by such seller;
(iv) upon receipt of any notice
from the Company of the happening of any event of the kind
described in Section 2.3(a)(ix), forthwith discontinue
disposition of the Registrable Securities pursuant to the
registration statement covering such Registrable Securities
until each such seller's receipt of the copies of the
supplemented or amended prospectus contemplated by Section
2.3(a)(ix) and, if so directed by the Company, each such
seller shall deliver to the Company all copies, other than
permanent file copies then in each such seller's possession,
of the prospectus then covering such Registrable Securities
current at the time of receipt of such notice, and, in the
event no registration statement has yet been filed, all
drafts of the prospectus covering such Registrable
Securities. In the event the Company shall give any such
notice, the periods mentioned in Section 2.3(a)(ii)(B) shall
be extended by the number of days during the period from and
including the date of the giving of such notice to and
including the date when each seller of any Registrable
Securities covered by such registration statement shall have
received the copies of the supplemented or amended
prospectus contemplated by Section 2.3(a)(ix);
(v) upon receipt of any notice
from the Company of the happening of any event of the kind
described in Section 2.3(a)(vii)(C), forthwith discontinue
disposition of the Registrable Securities pursuant to the
registration statement covering such Registrable Securities
until the stop order suspending the effectiveness of a
registration statement referred to in Section 2.1 or 2.2 has
been withdrawn and, if so directed by the Company, deliver
to the Company all copies, other than permanent file copies
then in each such seller's possession, of the prospectus
then covering such Registrable Securities current at the
time of receipt of such notice;
(vi) upon receipt of any notice
from the Company of the happening of any event of the kind
described in Section 2.3(a)(vii)(E), forthwith discontinue
disposition of the Registrable Securities pursuant to the
registration statement covering such Registrable Securities
in the jurisdiction in which qualification of the
Registrable Securities for sale in any jurisdiction has been
suspended, until the lifting of such suspension; and
(vii) upon receipt of a Delay Notice
with respect to sales of Registrable Securities pursuant to
a registration statement that has become effective,
discontinue disposition of such Registrable Securities until
such seller receives a Resumption Notice, or a new
registration statement with respect thereto has become
effective.
Section 2.4. Preparation; Reasonable
Investigation. In connection with the preparation and
filing of each registration statement registering
Registrable Securities under the Securities Act, the Company
shall give Mutual and its underwriters, if any, and their
respective counsel and accountants, subject to being bound
by a customary confidentiality agreement, the opportunity to
participate in the preparation of such registration
statement, each prospectus included therein or filed with
the SEC, and each amendment thereof or supplement thereto
and include therein material, furnished to the Company in
writing, which in the judgment of Mutual, subject to the
consent of the Company (which shall not be unreasonably
withheld), should be included, and shall give Mutual and its
counsel and accountants such access to its books and records
and such opportunities to discuss the business of the
Company with its officers and the independent public
accountants who have issued a report on its financial
statements as shall be necessary, in the reasonable opinion
of Mutual and such underwriters or their respective counsel,
to conduct a reasonable investigation within the meaning of
the Securities Act.
Section 2.5. Indemnification. (a) In the event
of any registration of any securities of the Company under
the Securities Act pursuant to Section 2.1 or 2.2, the
Company shall, and it hereby does, indemnify and hold
harmless, to the extent permitted by law, the seller of any
Registrable Securities covered by such registration
statement, its directors, officers or general and limited
partners, Affiliates (as so defined in the Securities Act)
or agents (and directors, officers and agents thereof), each
other Person who participates as an underwriter in the
offering or sale of such securities and each other Person,
if any, who controls such seller or any such underwriter
within the meaning of the Securities Act, as follows:
(i) against any and all loss,
liability, claim, damage or expense whatsoever, joint or
several, as incurred, arising out of or based upon an untrue
statement or alleged untrue statement of a material fact
contained in any registration statement under which such
securities are registered (or any amendment or supplement
thereto), including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out
of an untrue statement or alleged untrue statement of a
material fact contained in any preliminary, final or summary
prospectus (or any amendment or supplement thereto),
including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss,
liability, claim, damage and expense whatsoever, joint or
several, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with
the written consent of the Company, which consent shall not
be unreasonably withheld or delayed; and
(iii) against any and all expense,
as incurred (including reasonable fees and disbursements of
counsel), joint or several, reasonably incurred by them in
connection with investigating, preparing or defending
against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under
Section 2.5(a)(i) or Section 2.5(a)(ii);
provided, however, that this indemnity does not apply to any
loss, liability, claim, damage or expense to the extent
arising out of an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to
the Company by such underwriter or seller of Registrable
Securities expressly for use in the preparation of any
registration statement (or any amendment thereto) or any
preliminary prospectus or prospectus (or any amendment or
supplement thereto); and provided, further, that the Company
shall not be liable to (i) any Person who participates as an
underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act or (ii)
any seller of Registrable Securities, under the indemnity
agreement in this Section 2.5(a), with respect to any
preliminary prospectus or the final prospectus as amended or
supplemented, as the case may be, to the extent that any
such loss, claim, damage or liability of such underwriter or
controlling Person, or seller of Registrable Securities,
results from the fact that such underwriter or such seller
sold Registrable Securities to a Person to whom there was
not sent or given, at or prior to the written confirmation
of such sale, a copy of the final prospectus or of the final
prospectus as then amended or supplemented, whichever is
most recent, if the Company has previously furnished copies
thereof to such underwriter or seller. Such indemnity shall
remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any
such director, officer, general or limited partner,
underwriter or controlling person and shall survive the
transfer of such securities by such seller.
(b) The Company may require, as a condition to
including any Registrable Securities in any registration
statement filed pursuant to Section 2.1 or 2.2, that the
Company shall have received an undertaking reasonably
satisfactory to it from each prospective seller of such
Registrable Securities and any underwriter of such
Registrable Securities to indemnify and hold harmless (in
the same manner and to the same extent as set forth in
Section 2.5(a)) the Company and its directors, officers and
controlling persons, and all other prospective sellers and
their respective directors, officers, general and limited
partners, managing directors, with respect to any statement
or alleged statement in or omission or alleged omission from
such registration statement, any preliminary, final or
summary prospectus contained therein, or any amendment or
supplement, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the
Company by such seller or underwriter specifically stating
that it is for use in the preparation of such registration
statement, preliminary, final or summary prospectus or
amendment or supplement. Such indemnity shall remain in
full force and effect regardless of any investigation made
by or on behalf of the Company, any prospective seller, or
any underwriter, as the case may be, or any of their
respective directors, officers, controlling Persons, general
or limited partners or managing directors and shall survive
the transfer of such securities by such seller or
underwriter. In no event shall the liability of any seller
of Registrable Securities hereunder be greater in amount
than the dollar amount of the gross proceeds received by
such seller upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified
party of notice of the commencement of any action or
proceeding (including any governmental investigation)
involving a claim within the scope of Section 2.5(a) or (b),
such indemnified party shall, if a claim in respect thereof
is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action or
proceeding; provided, however, that the failure of any
indemnified party to give notice as provided herein shall
not relieve the indemnifying party of any liability which it
may have under this Section 2.5 except to the extent it has
been prejudiced in a material respect or from any liability
it may have otherwise than on account of this indemnity
agreement. In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may
select by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have
been authorized in writing by the indemnifying party in
connection with the defense of such action, (ii) the
indemnifying party shall not have employed counsel to take
charge of the defense of such action within a reasonable
time after notice of commencement of the action, or (iii)
such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them
which are different from or additional to those available to
the indemnifying party (in which case the indemnifying party
shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by
the indemnifying party. Anything in this Section 2.5 to the
contrary notwithstanding, the indemnifying party shall not
be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such
consent was not unreasonably withheld.
(d) The Company and each seller of Registrable
Securities shall provide for the foregoing indemnity (with
appropriate modifications) in any underwriting agreement
with respect to any required registration or other
qualification of securities under any federal or state law
or regulation of any governmental authority other than the
Securities Act.
Section 2.6. Contribution. To provide for just
and equitable contribution in circumstances under which the
indemnity contemplated by Section 2.5 is for any reason
unavailable to, or insufficient to hold harmless, an
indemnified party although applicable in accordance with its
terms, the Company, the sellers of Registrable Securities
and any underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses, of the
nature contemplated by such indemnity agreement, incurred by
the Company, any seller of Registrable Securities and one or
more of the underwriters, except to the extent that
contribution is not permitted under Section 11(f) of the
Securities Act. In determining the amount of contribution
to which the respective parties shall be entitled, there
shall be considered the relative benefits received by each
party from the offering of the Registrable Securities
(taking into account the portion of the proceeds of the
offering realized by each), the parties' relative knowledge
and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct
and prevent any statement or omission and any other
equitable considerations appropriate under the
circumstances. The Company and each seller of Registrable
Securities shall agree with each other and the underwriters
of the Registrable Securities, if requested by such
underwriters, that it would not be equitable if the amount
of such contribution were determined by pro rata or per
capita allocation (even if the underwriters were treated as
one entity for such purpose) or for the underwriters'
portion of such contribution to exceed the percentage that
the underwriting discount bears to the offering price of the
Registrable Securities. Notwithstanding the foregoing, the
liability of any seller of Registrable Securities for
contribution shall not be greater in amount than the
difference between the dollar amount of the gross proceeds
received by such seller upon the sale of the Registrable
Securities giving rise to such contribution obligation and
all amounts previously contributed by such seller with
respect to such losses, liabilities, claims, damages and
expenses. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding. For
purposes of this Section 2.6 each person, if any, who
controls an underwriter within the meaning of Section 15 of
the Securities Act shall have the same rights to
contribution as such underwriter, and each director and each
officer of the Company who signed the registration
statement, and each person, if any, who controls the Company
or a seller of Registrable Securities within the meaning of
Section 15 of the Securities Act shall have the same rights
to contribution as the Company or a seller of Registrable
Securities, as the case may be.
Section 2.7. Nominees of Beneficial Owners. In
the event that any Registrable Securities are held by a
nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its election, be treated as the seller
for purposes of any request or other action by a seller
pursuant to this Agreement. If the beneficial owner of any
Registrable Securities so elects to be treated as the
seller, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of
such Registrable Securities.
Section 2.8. Restrictions on Sale of Securities
by the Company and Others. The Company agrees not to effect
any public or private offer, sale or distribution of any
class or series of its capital stock or of any of its debt
securities, including a sale pursuant to Regulation D under
the Securities Act, during the 10-day period prior to, and
during the 90-day period beginning on the effectiveness of
any Registration Statement filed under Section 2.1 hereof to
the extent timely notified in writing by Mutual or by the
managing underwriter or underwriters (except as part of such
registration, if permitted, or pursuant to registrations on
Forms S-4 or S-8 or any successor form to such forms, any
employee stock option plan, stock ownership plan, stock
bonus plan, stock compensation plan or dividend reinvestment
plan of the Company in effect at the date of execution of
any underwriting agreement with respect to such underwritten
registration, and except that the Company may issue any
capital stock issuable upon the conversion of securities or
the exercise of warrants outstanding at the date of such
underwriting agreement).
ARTICLE III
OTHER TRANSFERS
Section 3.1. Removal of Restrictive Legends. The
Company agrees to take such action as any seller of a
Registrable Security may reasonably request, all to the
extent required from time to time to enable such seller of a
Registrable Security to sell such security without
registration under the Securities Act within the limitations
of the exemptions provided by Rule 144 or any similar rule
or regulation adopted by the SEC, including, without
limitation, issuing certificates representing such
Registrable Securities without the legends described in
Section 10.4 of the Subscription Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Effectiveness. This Agreement shall
become effective upon execution by each of the parties
hereto.
Section 4.2. Submission to Jurisdiction; Consent
to Service of Process.
(a) The parties hereto hereby irrevocably submit
to the non-exclusive jurisdiction of any federal or state
court located within the State of New York over any dispute
arising out of or relating to this Agreement or any of the
transactions contemplated hereby and each party hereby
irrevocably agrees that all claims in respect of such
dispute or any suit, action or proceeding related thereto
may be heard and determined in such courts. The parties
hereby irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or
hereafter have to the laying of venue of any such dispute
brought in such court or any defense of inconvenient forum
for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be
enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
(b) Each of the parties hereto hereby consents to
process being served by any party to this Agreement in any
suit, action or proceeding by the mailing of a copy thereof
in accordance with the provisions of Section 4.5 hereto.
Section 4.3. Specific Enforcement; Other
Remedies.
(a) Each party hereto acknowledges and agrees
that this Agreement is an integral part of the transactions
contemplated in the Subscription Agreement and that the
other party hereto would be irreparably damaged in the event
that any of the provisions of this Agreement were not
performed by such party hereto in accordance with their
specific terms or were otherwise breached. It is
accordingly agreed that either party shall be entitled to an
injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically its
terms and provisions in any court of the United States or of
any state or territory within the United States having
jurisdiction over such party; but such nonperformance or
breach shall not entitle the non-breaching party to
terminate this Agreement. This remedy is in addition to any
other remedy to which each party may be entitled at law or
equity.
(b) The parties further agree to waive any
requirement for the securing or posting of any bond in
connection with the obtaining of any such injunctive or
equitable relief.
Section 4.4. Severability. If any term,
provisions covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms, provisions,
covenants and restrictions shall remain in full force and
effect and shall in no way be affected, impaired or
invalidated.
Section 4.5. Notices. All notices and other
communications under this Agreement shall be in writing and
shall be deemed given when delivered personally, telecopied
or three days after being mailed by registered mail, return
receipt requested, to the parties at the following addresses
(or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to Hexcel, to:
Hexcel Corporation
5794 W. Las Positas Boulevard
Pleasanton, California 94578
Attention: Rodney P. Jenks, Esq.
Facsimile: (510) 734-8611
With a copy to:
Kronish, Lieb, Weiner & Hellman
1114 Avenue of the Americas
New York, New York 10036
Attention: Chet F. Lipton, Esq.
Facsimile: (212) 479-6275
If to Mutual, to:
Mutual Series Fund, Inc.
51 John F. Kennedy Parkway
Short Hills, New Jersey 07078
Attention: Peter Langerman
Facsimile: (201) 912-0147
With a copy to:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attention: Ronald F. Daitz, Esq.
Facsimile: (212) 310-8007
All notices are effective upon receipt or upon refusal if
properly delivered.
The names and addresses may be changed by written notice to
each person listed above.
Section 4.6. Entire Agreement. This Agreement
contains the entire understanding of the parties with
respect to the transactions contemplated hereby. This
agreement supersedes all prior agreements and understandings
among any of the parties hereto with respect to its subject
matter.
Section 4.7. Amendments. This Agreement may be
amended only by written agreement of the Company and Mutual.
Section 4.8. Descriptive Headings; References.
The descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any
provision of this Agreement. References herein to any
Section are to such Section contained in this Agreement.
Section 4.9. Governing Law. This Agreement
shall be governed by and construed in accordance with the
law of the State of New York without giving effect to the
principles of conflict of laws thereunder.
Section 4.10. Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of
and be enforceable by the successors and assigns of each
party, provided, however, that the Company may not assign
its obligations hereunder. Subsequent holders of
Registrable Securities shall be entitled to the benefits of
Section 2.2 to the extent provided therein and, at such time
as Mutual does not beneficially own any Registrable
Securities, the holders of a majority of Registrable
Securities shall be entitled to exercise and to have the
benefit of Mutual's rights under this Agreement provided
that, in each case, each such subsequent holder agrees to be
bound by the terms hereof and provides a copy of such
agreement to the Company. Notwithstanding anything to the
contrary in this Agreement, the Company shall have no
obligation to furnish information or provide notices to any
seller of Registrable Securities (other than Mutual) unless
the Company shall have received a copy of such agreement
from such seller.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the date first above written.
HEXCEL CORPORATION
By:___________________________
Name:
Title:
MUTUAL SERIES FUND, INC.
By:___________________________
Name:
Title:
<PAGE>
EXHIBIT D
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities
Exchange Act of 1934, as amended, the undersigned hereby
agree to the joint filing with each other of the attached
statement on Schedule 13D and to all amendments to such
statement and that such statement and all amendments to
such statement is made on behalf of each of them.
IN WITNESS WHEREOF, the undersigned hereby execute this
agreement this 8th day of August, 1994.
HEINE SECURITIES CORPORATION
By: /s/ Michael F. Price
President
MICHAEL F. PRICE
/s/ Michael F. Price
