SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
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)
N/A
(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 [ ]. (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*
N/A
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 N/A (See Item 5)
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY N/A
EACH 9 SOLE DISPOSITIVE POWER
REPORTING N/A (See Item 5)
PERSON 10 SHARED DISPOSITIVE POWER
WITH N/A
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON N/A
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.00%
(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
N/A
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 N/A
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY N/A
EACH 9 SOLE DISPOSITIVE POWER
REPORTING N/A
PERSON 10 SHARED DISPOSITIVE POWER
WITH N/A
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
N/A
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>
The Schedule 13D previously filed is hereby amended as
follows:
Item 7. Material To Be Filed As Exhibits
Exhibit D Standby Purchase Commitment dated
October 24, 1994 among Mutual Series
Fund Inc., the Board of Directors of the
Issuer, and The Official Committee of
Equity Security Holders of Hexcel
Corporation
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: November 1, 1994
/s/ Michael F. Price
President
Heine Securities Corporation
/s/ Michael F. Price
<PAGE>
EXHIBIT D
[MUTUAL SERIES FUND INC. LETTERHEAD]
October 24, 1994
Board of Directors
of Hexcel Corporation
5794 West Las Positas Boulevard
Pleasanton, CA 94588
The Official Committee
of Equity Security Holders
of Hexcel Corporation
c/o Peter D. Wolfson, Esq.
Marcus Montgomery Wolfson P.C.
53 Wall Street
New York, New York 10005
Re: Standby Purchase Commitment (the "Standby Purchase
Commitment") to Purchase Common Stock of Hexcel
Corporation
Gentlemen:
Hexcel Corporation ("Hexcel") and The Official
Committee of Equity Security Holders of Hexcel Corporation
(the "Equity Committee") have each agreed to support a Plan
of Reorganization for Hexcel (the "Plan"), in connection
with which Plan Hexcel will offer transferrable rights (the
"Rights") to its existing stockholders to subscribe for and
purchase an aggregate of 8,864,865 shares of common stock of
Hexcel at a price of $4.625 per share. The Plan will be in
the form of Exhibit A hereto with such changes therein as
may be agreed to by Mutual Series Fund Inc. ("Mutual" or
"Mutual Series"). In addition:
1. The Plan will provide that Hexcel will issue and sell
to Mutual on the effective date of the Plan (the "Effective
Date"), 1,945,946 shares of common stock of Hexcel (the
"Minimum Shares") at a price of $4.625 per share;
2. Mutual will be entitled to a break-up fee of $350,000
payable by Hexcel to Mutual and reimbursement of expenses,
all as set forth in Exhibit B hereto;
3. Any proposal on substantially the same terms
contemplated by this Standby Purchase Commitment shall be
required to be of a value of at least $5.125 per share in
order to be supported by Hexcel or the Equity Committee; and
4. The Plan will provide corporate governance provisions
in accordance with the terms set forth in Exhibit C hereto.
The Rights to be distributed to each existing
Hexcel stockholder will be distributed to such stockholder
on the basis of 1.21273 rights per existing outstanding
share of Hexcel common stock, and will be transferable to
the extent and in the manner set forth in the Plan. Each
right will be exercisable for:
1. One share of common stock of Hexcel ("Offered Shares"),
at a purchase price of $4.625 per Offered Share (the "Basic
Subscription Right"); plus
2. Upon full exercise by a stockholder of all Basic
Subscription Rights distributed to such stockholder, any
desired number of additional Offered Shares in a designated
portion of an "Oversubscription Pool" consisting of all
Offered Shares subject to Basic Subscription Rights that
have expired unexercised, at a purchase price of $4.625 per
such Offered Share (the "Oversubscription Rights").
The Plan will provide that the first 108,108
Offered Shares in the Oversubscription Pool be sold to John
J. Lee at a purchase price of $4.625 per share. Pursuant to
this Standby Purchase Commitment Mutual agrees to purchase,
in addition to the Minimum Shares, 25% of the balance, if
any, of the Offered Shares in the Oversubscription Pool
(such 25% being the "Standby Pool"), at a purchase price of
$4.625 per such Offered Share. The remaining Offered Shares
in the Oversubscription Pool shall constitute the
"Stockholder Pool". Also pursuant to this Standby Purchase
Agreement, Mutual agrees to purchase any Offered Shares in
the Oversubscription Pool that are not sold upon exercise of
Oversubscription Rights or sold to John J. Lee, at a
purchase price of $4.625 per such Offered Share.
Oversubscription Rights will be subject to
proration in case the aggregate number of Offered Shares
desired to be purchased pursuant thereto exceeds the number
available in the Stockholder Pool. The Offered Shares in
the Stockholder Pool will be apportioned among the holders
of Oversubscription Rights who exercised their
Oversubscription Rights in proportion to the number of Basic
Subscription Rights distributed to and exercised by each
through repeated application of the proration procedure
described in the following paragraph.
Each time the following procedure is applied, the
"number of Offered Shares remaining in the Stockholder Pool"
shall mean the number of shares in the Stockholder Pool not
apportioned by prior applications of the procedures
described in this paragraph. The number of Offered Shares
remaining in the Stockholder Pool shall be apportioned among
all those holders of Oversubscription Rights who have not
yet been apportioned (through previous applications of this
procedure) the full number of shares subscribed for by them
in their respective exercises of Oversubscription Rights.
Apportionment among them shall be based on the ratio of the
number of Basic Subscription Rights originally issued by
Hexcel to, and exercised by, each; provided, that if the
number of shares so apportioned to any holder of
Oversubscription Rights, exceeds the number of shares
subscribed for by that holder's exercise of Oversubscription
Rights, then the excess shall not be apportioned, and that
holder shall thereafter not be apportioned any additional
shares should there be further applications of this
procedure. This procedure shall be repeated until either
(i) all of the Offered Shares in the Stockholder Pool shall
have been apportioned and there are no Offered Shares left
in the Stockholder Pool for further apportionment, or (ii) a
sufficient number of Offered Shares has been apportioned to
all holders of Oversubscription Rights to satisfy all of
their exercised Oversubscription Rights, whichever occurs
first. Such distribution or determination, as the case may
be, shall be effected on a date (the "Second Closing Date")
promptly following the period during which the Rights shall
be exercisable.
Subject to the terms and conditions stated in this
Standby Purchase Commitment, Hexcel and the Equity Committee
agree with Mutual as follows:
1. Purchase Commitment.
a. Amount.
(1) Standby Purchase. The standby commitment of
Mutual is to purchase (a) the Offered Shares in the Standby
Pool and (b) all of the Offered Shares, if any, that remain
in the Stockholder Pool after all exercised Oversubscription
Rights have been fully satisfied ((a) and (b) being
collectively, the "Standby Shares").
(2) Total Purchase. The total number of shares
of common stock of Hexcel to be purchased by Mutual (the
"Total Shares") will be the sum of:
(i) The Standby Shares; and
(ii) The Minimum Shares.
b. Payment. Mutual shall pay for the Total Shares at
the rate of $4.625 per share according to the following
provisions of this Paragraph 1.b:
(1) Mutual shall pay $9,000,000 for the Minimum
Shares (the "Minimum Purchase Price") at a closing (the
"First Closing") to be held according to Paragraph 8 below;
(2) The aggregate purchase price for the Standby
Shares will be paid at a closing (the "Second Closing") to
be held according to Paragraph 9 below, by cancellation of
the same principal amount of the Advance (as defined below)
referenced in Paragraph 2 below and the principal amount of
the Note (as defined below) will be automatically reduced by
the principal amount so cancelled.
2. Advance. Mutual will, upon receipt of a commitment fee
equal to $500,000, advance to Hexcel $41,000,000 in
immediately available funds (the "Advance") at the First
Closing. The Advance shall be evidenced by a promissory
note from Hexcel to the order of Mutual, bearing interest at
a rate per annum equal to the Federal Funds rate as in
effect from time to time during the period from the date
Hexcel receives the Advance through (but not including) the
Second Closing Date, and will be secured by a first priority
security interest in the proceeds of the offering of the
Rights. The Advance shall be evidenced by a note in
substantially the form annexed hereto as Exhibit D (the
"Note") and Hexcel and Mutual shall enter into a security
agreement in substantially the form annexed hereto as
Exhibit E (the "Security Agreement"). For the purposes of
this Standby Purchase Commitment, "Federal Funds Rate" for
any day shall be the offered quote for such day as reported
in The Wall Street Journal or, if such quote is not
published for any reason, as otherwise reasonably determined
by Mutual.
3. Conditions. The commitment of Mutual in Paragraph 1.b.
to pay for the Minimum Shares and its commitment to make the
advance of $41,000,000 pursuant to Paragraph 2 are subject
to the prior satisfaction of the following conditions on the
date the First Closing is to be held (the "First Closing
Date"):
a. Confirmation and Effectiveness of the Plan. The
bankruptcy court shall have entered an order confirming the
Plan (the "Confirmation Order") which order has not been
stayed and all of the conditions to the effectiveness of the
Plan shall have been met or waived by the applicable party
or parties (and, if waived, such waiver shall have been
consented to by Mutual) at or prior to the close of business
in San Francisco, California on February 28, 1995 (or such
later date as is consented to in writing by Mutual).
b. Aggregate Indebtedness and Other Liabilities. On
the First Closing Date, the sum of (i) the indebtedness of
Hexcel in the three categories in Exhibit F hereto indicated
with an asterisk, plus (ii) the indebtedness and liabilities
of Hexcel which are included in the category "Payables &
Accruals" in Exhibit F indicated with a double asterisk to
the extent, and only to the extent, that such indebtedness
and liabilities (A) represent estimated environmental
liabilities or amounts reserved for litigation, adjusted by
adding back the amount of the discount, if any, taken to
calculate the present value of such liabilities or (B)
represent accrued interest or the reserve for liabilities
relating to DIC (as defined in the Plan) (but excluding any
other amounts included in the category "Payables & Accruals"
such as, but not limited to, accrued professional fees in
connection with the reorganization, professional fees for
financial services, accrued indebtedness and liabilities
owed or relating to employees, accrued tax liabilities,
reserves for write downs of asset values and reserves for
warranties), both (i) and (ii) being determined on a basis
consistent with that used by Hexcel in the preparation of
its current financial statements, pro forma for its
reorganization, shall not exceed $120,000,000 in the
aggregate. The long term debt for foreign subsidiaries and
the specific items within the category of "Payables &
Accruals" which are included in making the above
determination shall be, for purposes of the above
determination, as set forth in the last available regularly
prepared balance sheet of Hexcel. Satisfaction of this
condition may be established by delivery by Hexcel of a
certificate signed by its chief financial officer, provided
that such certification includes a statement that he has
made or caused to be made an investigation to determine
whether there has been any material adverse change in such
amounts computed in the preparation of such last regularly
prepared balance sheet and that he believes there have been
none.
c. No Material Adverse Change. Hexcel shall not have
suffered any material adverse change in its business,
operations, properties, assets or liabilities (actual or
contingent) subsequent to the Balance Sheet Date (defined in
Exhibit G to this letter) through and including the First
Closing Date.
d. Hexcel's Representations and Warranties. On the
First Closing Date, Hexcel shall have provided Mutual with
an instrument duly and validly executed on its behalf by a
senior executive officer thereof containing the
representations and warranties set forth in Exhibit G
hereto, and shall have agreed to indemnify and hold harmless
Mutual from and against any and all losses, liabilities,
obligations, damages, deficiencies, reasonable costs and
expenses ("Losses") based upon, attributable to or resulting
from:
(1) Any material misrepresentation set forth
therein or material breach of warranty set forth therein,
provided notice of the matter giving rise to such Losses is
given during the period of survival of the representations
and warranties as stated in paragraph 2 of Exhibit G; and
(2) Reversal, material modification or material
amendment of the Confirmation Order, other than a
modification or amendment consented to by Mutual.
e. Registration Rights Agreement. On the First
Closing Date, Hexcel shall have executed and delivered to
Mutual a registration rights agreement (the "Registration
Rights Agreement") in substantially the form annexed hereto
as Exhibit H.
f. Hart-Scott-Rodino Act. All applicable waiting
periods under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended shall have expired or been
terminated.
g. Northrop Agreement. Hexcel shall have entered
into an agreement, reasonably satisfactory to Mutual, with
The Northrop Grumman Corporation ("Northrop") for the sale
of its plant in Chandler, Arizona and the "EMT technology"
used at that facility to Northrop for approximately $30
million, and such transaction shall have closed.
4. Representations, Warranties, Agreements and
Understandings. Mutual represents, warrants, understands
and agrees as follows:
a. In view of its representation in clause c below,
all certificates representing shares of common stock of
Hexcel issued to Mutual and subject to the restriction on
transfer described in clause c below may be endorsed with an
appropriate legend reflecting that restriction.
b. It is a "Qualified Institutional Buyer" as such
term is defined under Rule 144A promulgated under the
Securities Act of 1933, as amended (the "1933 Act"), and is
an investment company registered under the Investment
Company Act of 1940, as amended.
c. Mutual acknowledges that the shares to be acquired
by it pursuant hereto have not been registered for sale
under any federal or state securities laws and that such
shares are being offered and sold to Mutual pursuant to the
exemption from registration provided for in Section 4(2) of
the 1933 Act. It intends to purchase Hexcel securities as
contemplated hereby for investment purposes only and not
with a view towards the resale or distribution of such
shares. Mutual shall not sell or transfer the common stock
of Hexcel purchased in accordance with the terms hereof
unless such sale or transfer is pursuant to an effective
registration statement under the 1933 Act or pursuant to an
available exemption from such registration.
d. It is duly organized and validly existing under
the laws of the State of Maryland, and has the power and
authority to execute this Standby Purchase Commitment and
perform its obligations hereunder.
e. Its execution, delivery and performance of its
undertakings contained in this Standby Purchase Commitment
have been duly authorized by all required corporate or other
action.
f. The performance by it of its obligations under
this Standby Purchase Commitment will not violate or breach,
or constitute a default under, any provision of its
governing instruments or any contract to which it is a party
or by which any of its properties are bound, nor of any law
or regulation to which it or its properties are subject; and
no consent or approval of any governmental agency is
required in connection with any aspect of such performance.
g. This Standby Purchase Commitment, when executed
and delivered by Mutual, is Mutual's valid and binding
obligation enforceable against Mutual in accordance with its
terms, subject to applicable bankruptcy and similar laws
affecting generally the rights of creditors, and subject to
general equitable principles affecting enforceability.
h. As of the date hereof, Mutual does not own any
securities of Hexcel. Mutual has not been solicited by
Hexcel or the Equity Committee to vote in favor of the Plan.
i. This Standby Purchase Commitment results from an
offer to Hexcel by Mutual and such offer was not solicited
by the Equity Committee.
5. Covenants. Hexcel and the Equity Committee hereby
covenant and agree that:
a. As expeditiously as possible after the date of
execution and delivery of this Standby Purchase Commitment
by all the parties hereto (the "Execution Date"), but in no
event later than five business days thereafter, Hexcel and
the Equity Committee will file with the bankruptcy court a
motion (the "Motion") requesting the entry of an order of
the bankruptcy court in form and substance satisfactory to
Mutual and its counsel (i) establishing a requirement that
any proposal on substantially the same terms contemplated by
this Standby Purchase Commitment be of a value of at least
$5.125 and (ii) approving a break-up fee of $350,000 and
expense reimbursement for Mutual (payment of which expense
reimbursement will be applied against any break-up fee
payable to Mutual and be limited to $350,000 if any break-up
fee is so payable).
b. Hexcel and the Equity Committee will continue to
support the Motion in the event that Mutual is overbid prior
to a hearing thereon.
In addition, the Equity Committee will not object
to the reimbursement provided for in this Standby Purchase
Commitment of Mutual's documented expenses up to $350,000
and, in the event that the First Closing occurs, up to
$500,000.
6. Certain Agreements.
a. Should Mutual default in its obligations
hereunder, Hexcel shall be entitled to assert a claim for
damages, including damages for breach of contract, resulting
therefrom, if any, including, without limitation, any
reasonable expense incurred in connection therewith;
provided however, that any such damages shall not exceed the
amount of the aggregate purchase price for the Total Shares.
The Equity Committee as well as Hexcel shall be entitled to
assert any such claim for damages.
b. Mutual recognizes that Hexcel and the Equity
Committee may be required to modify the Plan to the extent
necessary to discharge their respective fiduciary duties.
Hexcel and the Equity Committee recognize that any material
change to the Plan not approved by Mutual shall result in
the condition set forth in paragraph 3.a. not being
satisfied and Mutual being entitled to the reimbursement of
its expenses as provided in Exhibit B hereto and, in
addition, may result in Mutual being entitled to the Breakup
Fee provided for in Exhibit B hereto, but the aggregate of
all such payments shall not exceed $350,000.
7. Termination. Notwithstanding anything to the contrary
in this Standby Purchase Commitment, its effectiveness may
be terminated and the transactions it contemplates may be
abandoned at any time prior to the Effective Date under any
of the following circumstances:
a. Mutual, Hexcel and the Equity Committee agree in
writing to such termination; or
b. Mutual is not in breach of its obligations
hereunder in any material respect and (i) either Hexcel or
the Equity Committee has materially breached its obligations
hereunder, (ii) Mutual elects in a written notice to
terminate by reason of such breach, and (iii) such breach
has remained uncured for more than ten days after Mutual has
given notice of such breach; or
c. Hexcel and the Equity Committee are not in breach
of their obligations hereunder in any material respect and
(i) Mutual has materially breached its obligations
hereunder, (ii) Hexcel and the Equity Committee jointly
elect in a written notice to terminate by reason of such
breach, and (iii) such breach has remained uncured for more
than ten days after Hexcel and the Equity Committee have
jointly given notice of such breach; or
d. Mutual elects in a written notice to terminate by
reason of non-satisfaction of (i) the condition in paragraph
3.a. hereto, or (ii) on the First Closing Date, any of the
other conditions in paragraph 3 hereto; or
e. Mutual elects in a written notice to terminate by
reason of the bankruptcy court not having (i) determined
within 25 days after the Execution Date that the relief
requested in the Motion should be granted subject only to
the entry of an appropriate order or (ii) entered an order
(the "Approval Order") in form and substance satisfactory to
Mutual and its counsel granting the relief requested in the
Motion on or prior to the 30th day following the Execution
Date; or
f. Mutual elects in a written notice to terminate by
reason that, after entry of the Approval Order, the Approval
Order is reversed, revoked, voided, modified without
Mutual's consent or stayed by an order of a court of
competent jurisdiction.
In the case of 7.d.(i) and 7.e., Mutual can only elect to
terminate by written notice within 10 business days after
the occurrence of the event which gives rise to Mutual's
right of termination.
8. First Closing. The First Closing shall take place on
the Effective Date at a place designated by Hexcel in a
notice delivered to Mutual at least five business days in
advance of the Effective Date. Mutual shall pay the Advance
and the Minimum Purchase Price in immediately available
funds against delivery by Hexcel of one or more certificates
representing the Minimum Shares, the $500,000 commitment fee
for the Advance in immediately available funds and the
reimbursement by Hexcel of Mutual's expenses as and to the
extent provided in Exhibit B hereto.
9. Second Closing. The Second Closing shall take place as
soon as practicable after the end of the period within which
the Rights may be exercised, at the date, time (which shall
be during normal business hours) and place designated by
Hexcel in a notice delivered to Mutual at least five
business days in advance of the date noticed. Payment of
the purchase price of the shares to be purchased at the
Second Closing by Mutual, through cancellation of the same
principal amount of the Advance, shall be made upon payment
to Mutual of all unpaid interest on the Advance and Mutual's
expenses, payable by Hexcel pursuant to Exhibit B hereto,
not previously reimbursed at the First Closing.
10. Assignment. Mutual may not assign its rights and
obligations under this Standby Purchase Commitment.
11. Notices. All notices and other communications
concerning the subject matter of this Standby Purchase
Commitment shall be in writing, shall be given by mail,
facsimile transmission or personal delivery, shall be
effective upon receipt by the parties at the following
addresses (or to such other address as a party may have
specified by notice given to the other parties pursuant to
this provision):
If to the Equity Committee, to:
The Official Committee of Equity
Security Holders of Hexcel Corporation
c/o Peter D. Wolfson, Esq.
Marcus Montgomery Wolfson P.C. 53
Wall Street
New York, New York 10005-2815
Attention: Peter D. Wolfson, Esq.
Facsimile: (212) 858-5201
With a copy to:
Marcus Montgomery Wolfson P.C. 53
Wall Street
New York, New York 10005-2815
Attention: Peter D. Wolfson, Esq.
Facsimile: (212) 858-5201
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 Mutual, to:
Mutual Series Fund Inc.
51 John F. Kennedy Parkway Short
Hills, New Jersey 07078
Attention: Peter A. 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.
12. Governing Law. This Standby Purchase Commitment 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 chapter 11 of title 11 of the
United States Code, as amended (the "Bankruptcy Code").
13. Entire Agreement. This Standby Purchase Commitment
represents the entire understanding of the parties regarding
its subject matter and supersedes all prior offers,
agreements and communications regarding that subject matter,
including but not limited to the Stock Subscription and
Standby Purchase Agreement, dated as of July 27, 1994, which
is superseded in its entirety hereby. Without limitation of
the foregoing, no party hereto has made any representation
or warranty to any other party hereto with respect to the
transaction contemplated hereby, except as set forth in this
Standby Purchase Commitment. This Standby Purchase
Commitment can be modified or amended only by a later
written instrument signed by the parties. References to
this Standby Purchase Commitment are deemed to include all
Exhibits hereto.
To confirm the above, we have executed this
Standby Purchase Commitment on and as of the date appearing
on the first page.
Very truly yours,
MUTUAL SERIES FUND INC.
By:/s/ Peter A. Langerman
Peter A. Langerman
Executive Vice President
Consented and Agreed to as of
the date first written above:
HEXCEL CORPORATION
By: /s/ Robert D. Krumme
Robert D. Krumme
Vice Chairman
THE OFFICIAL COMMITTEE OF EQUITY SECURITY
HOLDERS OF HEXCEL CORPORATION
By: /s/ Joseph L. Harrosh
Joseph L. Harrosh
Chairman
EXHIBIT A
FORM OF PLAN
[Filed on October 24, 1994 in the United States
Bankruptcy Court. Northern District of California
No. 93-48535 T Chapter 11]
EXHIBIT B
REIMBURSEMENT OF EXPENSES,
BREAK-UP FEE AND OVERBID
All capitalized terms in this exhibit have the same meanings
as in the Standby Purchase Commitment to which this exhibit
is attached.
1. Subject to paragraph 4 of this Exhibit B,
Hexcel shall reimburse Mutual for all of Mutual's out-of
pocket costs and expenses (including the reasonable fees and
expenses of Mutual's counsel, accountants, investment
bankers and other professional persons), payable at the
First Closing and thereafter as incurred or on the
termination of the Standby Purchase Commitment, (i) in
connection with the negotiation, documentation and
implementation of this Standby Purchase Commitment, the
Registration Rights Agreement, the Security Agreement and
the Stock Subscription and Standby Purchase Agreement, dated
as of July 27, 1994, between Hexcel and Mutual, and the
transactions contemplated thereby, including, without
limitation, the out-of-pocket costs and expenses of Mutual
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 (including,
without limitation, discovery undertaken in Hexcel's
bankruptcy case) commenced or asserted in Hexcel's
bankruptcy case; provided, however, that (i) in the event
that the Standby Purchase Agreement is terminated (whether
or not the Break-up Fee is payable), Hexcel's aggregate
obligation to reimburse Mutual for expenses hereunder and to
pay the Break-up Fee shall not exceed $350,000, and (ii)
Hexcel shall not be required to reimburse Mutual for any
expenses hereunder (and Mutual shall reimburse Hexcel for
any amounts paid by it to Mutual) if this Standby Purchase
Commitment is terminated by Hexcel and the Equity Committee
jointly pursuant to Section 7.c. thereof.
2. For the purposes of this Standby Purchase
Commitment, "Acquisition Transaction" means (i) any business
combination involving Hexcel or either Hexcel S.A.(a Belgian
corporation) or Hexcel S.A. (a French corporation) (each, a
"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 its subsidiaries for $40,000,000
or more in a single transaction or series of related
transactions, excluding in the case of (A) and (B) the sale
to Northrop of Hexcel's plant in Chandler, Arizona and the
"EMT technology" used at that facility and the sale of
Hexcel's domestic and European resins business, 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 existing holders of Hexcel's common
stock pro rata.
3. In the event that Hexcel or the Equity
Committee 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 will produce a
result more favorable to Hexcel than the result of
proceeding with this Standby Purchase Commitment, the Board
of Directors or appropriate committee thereof may withdraw
its approval or recommendation of this Standby Purchase
Commitment, approve or recommend any such other proposal,
enter into an agreement with respect to such other proposal
or terminate this Standby Purchase Commitment, and in each
case shall provide Mutual with immediate notice thereof. Any
termination of this Standby Purchase Commitment pursuant to
this paragraph 3 shall be deemed an Acquisition Transaction.
4. Whether or not the First Closing is
consummated, Hexcel and the Equity Committee acknowledge and
agree that Mutual has made a substantial investment of
management time and incurred substantial out-of-pocket
expenses in connection with the negotiation and execution of
this Standby Purchase Commitment and the effort to
consummate the transactions contemplated hereby and thereby.
If the First Closing is not consummated and an Acquisition
Transaction shall have occurred during the pendency of
Hexcel's bankruptcy case, Hexcel shall immediately pay to
Mutual a fee (the "Break- up Fee") equal to the excess of
$350,000 over all amounts theretofore paid to Mutual
pursuant to paragraph 1 of this Exhibit B. In the event
that Hexcel pays Mutual the Break-up Fee, Hexcel shall not
be required to make any additional payment pursuant to
paragraph 1; provided, however, that no Break-up Fee or
expense reimbursement shall be payable if Mutual is in
material breach of this Standby Purchase Commitment at the
date of any such termination, or Mutual, Hexcel and the
Equity Committee mutually agree in writing to such
termination pursuant to paragraph 7.a of the Standby
Purchase Commitment.
5. Upon the occurrence of an Acquisition
Transaction, Mutual shall provide written notice to Hexcel
of Mutual'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 Mutual the Break-up Fee by wire transfer
of immediately available funds to an account or accounts
designated by Mutual. Until Hexcel's obligation to pay the
Break-up Fee is fully and indefeasibly discharged, Mutual's
claim for the Break-up Fee shall be treated as an allowed
administrative claim in Hexcel's bankruptcy case pursuant to
Section 503(b) of the Bankruptcy Code entitled to priority
under Section 507(a)(1) of the Bankruptcy Code.
EXHIBIT C
HEXCEL CORPORATION
JOINT PLAN
CORPORATE GOVERNANCE AND MANAGEMENT COMPROMISE POSITION
September 26, 1994
1. Initial Board of Directors.
To be comprised of three Equity Committee
nominees, two Mutual Series nominees, three nominees
mutually acceptable to the Equity Committee and Mutual
Series and the new Chief Executive Officer of Hexcel
commencing with his employment by Hexcel. If Mutual Series
owns more than 50% of the outstanding common stock of Hexcel
upon consummation of the rights offering, Mutual Series will
designate one additional director. If Mutual Series owns
less than 25% of the outstanding common stock of Hexcel upon
consummation of the rights offering, the directors nominated
by the Equity Committee, together with the directors
nominated by mutual agreement of the Equity Committee and
Mutual Series, will select one additional director. The new
Board of Directors will select (with the approvals of at
least two of the nominees of the Equity Committee) one of
the directors as initial Chairman. The initial Board of
Directors of Hexcel shall hold office until the first
postconsummation annual meeting of stockholders of Hexcel,
and until such directors' successors shall be elected and
qualified.
2. Interim Management.
Pending selection of a new Chief Executive Officer
mutually acceptable to the Equity Committee and Mutual
Series, Lee will continue as Chief Executive Officer of
Hexcel. Pending effectiveness of the plan, Lee will continue
as Chairman and David Glatstein will continue as Vice
Chairman of the Board of Directors and Robert Witt will
continue to serve as a consultant with his principal points
of contact with Hexcel being David Glatstein and Frank
Wimer. The search for a new Chief Executive Officer will
begin immediately using an executive search firm retained by
Hexcel but selected by mutual agreement of the Equity
Committee and Mutual Series. The contract with the
executive search firm shall provide that all communications
with the search firm will be conducted solely with the
Equity Committee and Mutual Series jointly and not on an ex
parte basis with either party. The selection of the new
Chief Executive Officer will be made by mutual agreement of
(i) the Equity Committee and Mutual Series, if selected
prior to the effective date of the plan or (ii) the board
designees of the Equity Committee and the board designees of
Mutual Series, if selected after the effective date of the
plan.
3. Lee Continuation Condition.
When the new Chief Executive Officer takes office,
Lee will resign as an officer of Hexcel and will be retained
as a consultant by Hexcel for strategic planning, reporting
to the Chief Executive Officer and Board of Directors of
Hexcel under a two year agreement, subject to termination at
the end of the first year by resolution of the Board of
Directors delivered to Lee not earlier than 60 days and not
later than 30 days prior to the end of the first year.
4. Lee Compensation and Equity.
A. Base compensation (salary and fees) of $180,000
per year during the first year, $230,000 during the second
year, plus the same benefits provided to him in his interim
employment agreement approved by the Bankruptcy Court.
B. Appropriate bonus opportunity determined by the
Board of Directors based upon attainment of the goals
established by the Board of Directors.
C. Stock options for approximately .625% of Hexcel's
fully diluted common stock (without giving effect to the
conversion of the 7% Convertible Subordinated Debentures due
2011) at a price equal to the average of the daily average
prices of the stock for the 20 trading days beginning 30
calendar days following expiration of the rights offering.
Such options will vest in equal monthly installments over
the two-year term of the consulting agreement, subject to
being fully vested upon any early termination thereof (other
than for cause or voluntary resignation) and will be
exercisable until the later of three years following the
date of grant (i.e., the effective date of the plan) or one
year after expiration of the consulting agreement.
D. Commitment and right to purchase $500,000 of
common stock at rights offering price, upon consummation of
the rights offering. The shares to be purchased shall be a
first call on the Oversubscription Pool, if any, reducing
Mutual Series and the stockholders' respective shares
therein on a pro rata basis, and thereafter from authorized
shares of Hexcel and over and above the shares to be sold in
the rights offering.
E. Subject to approval of the current Board of
Directors, Hexcel intends to apply to the court for
authority to pay a success bonus of up to $500,000 to John
Lee upon consummation of the Plan as well as bonuses to
other employees. It is understood that the Equity Committee
has no commitment to support any such application, and
reserves the right to object to such application.
5. Stockholders' Meeting.
First post-consummation annual meeting of
stockholders to be held not earlier than nine months after
the effective date of the plan unless otherwise agreed by
the board designees of Mutual Series and the Equity
Committee. Reorganized Hexcel's bylaws shall provide for the
right of any stockholder(s) holding in excess of 25% of the
reorganized Hexcel's common stock to call a special meeting,
including one at which directors may be elected, at any time
after nine months following the effective date of the plan.
EXHIBIT D
FORM OF NOTE
SECURED PROMISSORY NOTE
New York, New York $
[Date]
FOR VALUE RECEIVED, the undersigned, HEXCEL
CORPORATION (the "Maker"), promises to pay to the order of ,
or its assigns (the "Lender"), the principal amount of ($ ),
subject to reduction as provided in Paragraph
1.b.(2) of the Standby Purchase Commitment, dated October
__, 1994, issued by the Lender to, and accepted by, the
Maker, and The Official Committee of Equity Security Holders
of Hexcel Corporation (the "Standby Purchase Commitment"),
in lawful money of the United States of America, with
interest on the unpaid balance at the Federal Funds rate as
in effect from time to time (the "Interest Rate").
Principal and interest on this Note shall be
payable on the earlier to occur of (i) the Second Closing
under the Standby Purchase Commitment or (ii) 60 days after
the date hereof. The Federal Funds rate for any day shall
be the offered quotation for Federal Funds for such day as
reported in The Wall Street Journal or if said quotation is
not published for any reason, as otherwise reasonably
determined by the Lender.
If the Maker fails to make any payment when due
under this Note, then the entire unpaid balance hereof shall
thereafter bear interest at a rate which is two per cent
(2%) in excess of the Interest Rate until such amount in
default is paid in full (before and after judgment).
The Maker shall have the unqualified right to pay
all or a portion of the principal amount of this Note at any
time and from time to time. Interest accrued upon any
amount prepaid shall be paid therewith at the time of
prepayment.
The Maker waives presentment, demand for payment,
protest, notice of dishonor and all other notices and
demands of any kind hereunder, and agrees to reimburse and
indemnify the Lender for all costs and expenses incurred by
the Lender in collecting payment, including attorneys' fees
and costs.
Payment of the principal amount of, and interest
upon, this Note is secured pursuant to a Security Agreement
of even date herewith by the Maker in favor of the Lender.
The benefit of such security and the Security Agreement
shall inure to the Lender's successors and assigns. This
Note, and the benefit of the Security Agreement may be
negotiated, assigned and transferred by the Lender without
restriction, and the Maker, upon notice of such negotiation,
assignment or transfer, shall treat the assignee as the
Lender for all purposes hereunder.
This Note shall be governed by and interpreted in
accordance with the law of the State of New York applicable
to instruments executed and to be performed entirely in that
State.
IN WITNESS WHEREOF, the Maker has executed this
Note on and as of the date set forth above.
HEXCEL CORPORATION
By:
Name:
Title:
EXHIBIT E
FORM OF SECURITY AGREEMENT
This SECURITY AGREEMENT, dated , 1994, is
made by Hexcel Corporation, a Delaware corporation (the
"Grantor"), in favor of Mutual Series Fund Inc. (the
"Secured Party").
Recitals
The United States Bankruptcy Court for the Northern
District of California confirmed Grantor's Plan of
Reorganization (the "Plan") under Chapter 11 of the United
States Bankruptcy Code on , 1994. Pursuant to the
Plan, (i) on the Effective Date, pursuant to the Standby
Purchase Commitment, dated October , 1994, the Grantor
has received a loan from the Secured Party and the Secured
Party has loaned to the Grantor $41,000,000 in the
aggregate, evidenced by a Secured Promissory Note (the
"Note"), and (ii) Grantor is commencing a rights offering to
its existing Stockholders to subscribe for and purchase an
aggregate of $41 million of common stock of Hexcel (the
"Rights Offering"). This Security Agreement is the security
agreement entered into pursuant to the Note and secures
payment of the Note in accordance with its terms.
Terms of Agreement
NOW, THEREFORE, in consideration of, and in order to
induce the Secured Party to make, the loan evidenced by the
Note, the Grantor hereby agrees with the Secured Party as
follows:
Section 1. Grant of Security. The Grantor hereby
assigns and pledges to the Secured Party, and hereby grants
to the Secured Party a security interest in, all of the
Grantor's right, title and interest in and to the proceeds
of the Rights Offering, including without limitation all
amounts deposited with the financial institution selected by
the Grantor to act as depository with respect to the Rights
Offering (the "Bank"), including all interest and any other
proceeds arising thereon, all replacements and substitutions
thereof, and all proceeds of the foregoing (the
"Collateral"); provided, however, Collateral shall not
include the amounts paid by holders of Subscription Rights
which, under the terms of the Rights Plan (as defined in the
Plan) are required to be returned to such holders.
Section 2. Security for Obligations. This Security
Agreement secures the payment of all obligations of the
Grantor now or hereafter existing under the Note, whether
for principal, interest or otherwise, and all obligations of
the Grantor now or hereafter existing to Secured Party under
this Security Agreement (all such obligations of the Grantor
being the "Obligations").
Section 3. Bank Acknowledgment. The Bank has executed
this Security Agreement to acknowledge that it will hold all
amounts received as the depository pursuant to that
Agreement, dated , 1994, between the Bank and the
Grantor, in a separate account (the "Account") for the
benefit of the Secured Party, that such funds are being held
for the account of the Secured Party and that, upon the
conclusion of the Rights Offering, the Bank shall pay
directly to the Secured Party all amounts held in the
Account (excluding amounts, if any, to be returned to
holders of subscription rights as provided in the Rights
Plan) for application to the indebtedness evidenced by the
Note.
Section 4. Representations and Warranties. The
Grantor represents and warrants as follows:
(a) Grantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has the corporate power and lawful authority to
own, lease and operate its assets, properties and business
and to carry on its business.
(b) Grantor has the full legal right and power and all
authority and approval required to enter into, execute and
deliver this Security Agreement, and to perform fully its
obligations under this Security Agreement. This Security
Agreement has been duly executed and delivered and is the
valid and binding obligation of Grantor enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting the rights of
creditors and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law). No approval or
consent of any foreign, federal, state, county, local or
other governmental or regulatory body, and no approval or
consent of any other person is required in connection with
the execution and delivery by Grantor of this Security
Agreement and the consummation and performance by Grantor of
the transactions contemplated hereby.
(c) The chief place of business and chief executive
office of the Grantor and the office where the Grantor keeps
its records concerning the Collateral are located at its
address at 5794 W. Las Positas Boulevard, Pleasanton,
California 94588.
(d) The Collateral is and will be free and clear of
any lien, security interest, option or other charge or
encumbrance by Grantor except for the security interest
created by this Security Agreement. No effective financing
statement against Grantor or other document similar in
effect covering all or any part of the Collateral is on file
in any recording office, except such as may have been filed
in favor of the Secured Party relating to this Security
Agreement.
(e) This Security Agreement creates a valid and
perfected first priority security interest in all of
Grantor's right, title and interest in and to the
Collateral, securing the payment of the Obligations, and all
filings and other actions necessary or desirable to perfect
and protect such security interest have been duly taken.
(f) No consent of any other person or entity and no
authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory
body which has not been obtained or made is required (i) for
the grant by the Grantor of the security interest granted
hereby or for the execution, delivery or performance of this
Security Agreement by the Grantor, (ii) for the perfection
or maintenance of the security interest created hereby
(including the first priority nature of such security
interest) or (iii) for the exercise by the Secured Party of
rights provided for in this Security Agreement or the
remedies in respect of the Collateral pursuant to this
Security Agreement.
(g) There are no conditions precedent to the
effectiveness of this Security Agreement that have not been
satisfied or waived.
Section 5. Further Assurances. (a) The Grantor
agrees that from time to time, at the expense of the
Grantor, the Grantor will promptly execute and deliver all
further instruments and documents, and take all further
action, that may be necessary or desirable, or that the
Secured Party may reasonably request, in order to perfect
and protect any pledge, assignment or security interest
granted or purported to be granted hereby or to enable the
Secured Party to exercise and enforce its rights and
remedies hereunder with respect to the Collateral, including
execution and filing of additional financing statements in
any jurisdiction where the Collateral may be located or to
which Grantor may move its principal place of business
and/or chief executive office.
(b) The Grantor hereby authorizes the Secured Party to
file one or more financing or continuation statements, and
amendments thereto, relating to all or any part of the
Collateral without the signature of the Grantor where
permitted by law. A photocopy or other reproduction of this
Security Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law.
(c) The Grantor will furnish to the Secured Party from
time to time statements and schedules further identifying
and describing the Collateral and such other reports in
connection with the Collateral as the Secured Party may
reasonably request.
Section 6. Place of Perfection; Records; Collection of
Receivables. The Grantor shall keep its chief place of
business and chief executive office and the office where it
keeps its records concerning the Collateral, at the location
therefor specified in this Security Agreement or, upon 30
days' prior written notice to the Secured Party, at any
other locations in a jurisdiction where all actions required
to maintain Secured Party's perfected security interest in
the collateral shall have been taken. The Grantor will hold
and preserve such records and will permit representatives of
the Secured Party at any time during normal business hours
to inspect and make abstracts from such records.
Section 7. Transfers and Other Liens. The Grantor
shall not (i) sell, assign (by operation of law or
otherwise) or otherwise dispose of, or grant any option with
respect to, any of the Collateral, or (ii) create or permit
to exist any lien, security interest, option or other charge
or encumbrance upon or with respect to any of the
Collateral, except for the security interest under this
Security Agreement.
Section 8. Remedies. If any default under the Note
shall have occurred and be continuing and payment to the
Secured Party of the funds in the Account (excluding
amounts, if any, to be returned to holders of subscription
rights as provided in the Rights Plan) is not made:
(a) The Secured Party may exercise in respect of the
Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party on default under the
Uniform Commercial code in effect in the State of New York
at that time (the "Code") (whether or not the Code applies
to the affected Collateral) or the Uniform Commercial Code
applicable to the validity or perfection of the security
interest in the Collateral over which rights on default are
asserted. Without limiting the foregoing, the Secured Party
shall be entitled, without notice except as specified below,
to sell the Collateral or any part thereof in one or more
sales, at public or private sale, at any of Secured Party's
offices or elsewhere, for cash, or credit or for future
delivery, and upon such other terms as the Secured Party may
deem commercially reasonable. The Grantor agrees that, to
the extent notice of sale shall be required by law, at least
ten days' notice to the Grantor of the time and place of any
public sale or the time after which any private sale is to
be made shall constitute reasonable notification. The
Secured Party shall not be obligated to make any sale of the
Collateral, regardless of notice of sale having been given.
The Secured Party may adjourn any public or private sale
from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was adjourned.
(b) Any surplus of such cash or cash proceeds held by
the Secured Party and remaining after payment in full of all
the Obligations shall be paid over to the Grantor or to
whomsoever may be lawfully entitled to receive such surplus.
(c) All payments received by the Grantor under or
otherwise in respect of the Collateral shall be received in
trust for the benefit of the Secured Party, shall be
segregated from other funds of the Grantor and shall be
forthwith paid over to the Secured Party in the same form as
so received (with any necessary endorsement).
Section 9. Indemnity and Expenses. (a) The Grantor
agrees to indemnify the Secured Party from and against any
and all claims, losses and liabilities (including reasonable
attorneys' fees) growing out of or resulting from this
Security Agreement (including, without limitation,
enforcement of this Security Agreement), except claims,
losses or liabilities resulting from the Secured Party's
gross negligence or willful misconduct.
(b) The Grantor will upon demand pay to the Secured
Party the amount of any and all reasonable expenses,
including the reasonable fees and expenses of its counsel
and of any experts and agents, which the Secured Party may
incur in connection with (i) the administration of this
Security Agreement, (ii) the collection of, or other
realization upon, any of the Collateral, (iii) the exercise
or enforcement of any of the rights of the Secured Party
hereunder or (iv) the failure by the Grantor to perform or
observe any of the provisions hereof.
Section 10. Amendments; Etc. No amendment or waiver
of any provision of this Security Agreement, and no consent
to any departure by the Grantor herefrom, shall in any event
be effective unless the same shall be in writing and signed
by the Secured Party, and then such waiver or consent shall
be effective only in the specific instance and for the
specific purpose for which given.
Section 11. Addresses for Notices. All notices and
other communications provided for hereunder shall be in
writing and mailed, telecopied, or delivered to it, if to
the Grantor, at its addresses at facsimile
( ), Attention: President, and if to the Secured
Party, at its address at 51 John F. Kennedy Parkway, Short
Hills, New Jersey 07078, Attention Peter A. Langerman, or,
as to either party, at such other address as shall be
designated by such party in a written notice to the other
party. All such notices and other communications shall be
effective when telecopied, with receipt confirmed and a copy
sent by registered mail, and otherwise when delivered.
Section 12. Continuing Security Interest; Assignment
of Note. This Security Agreement shall create a continuing
security interest in the Collateral and shall (a) remain in
full force and effect until the payment in full of the
Obligations and all other amounts payable under this
Security Agreement, (b) be binding upon the Grantor, its
successors and assigns, and (c) inure to the benefit of, and
be enforceable by, the Secured Party and its successors,
transferees and assigns. Upon the payment in full of the
Obligations, the security interest granted hereby shall
terminate and all rights to the Collateral shall revert to
the Grantor. Upon any such termination, the Secured Party
will, at the Grantor's expense, execute and deliver to the
Grantor such documents as the Grantor shall reasonably
request to evidence such termination.
Section 13. Governing Law; Terms. This Security
Agreement shall be governed by and construed in accordance
with the law of the State of New York, except to the extent
that the validity or perfection of the security interest
hereunder, or remedies hereunder, in respect of any
particular Collateral are governed by the law of any other
jurisdiction. Unless otherwise defined herein terms used in
Article 9 of the code are used herein as therein defined.
IN WITNESS WHEREOF, the Grantor has caused this
Security Agreement in favor of the Secured Party to be duly
executed and delivered by its officer thereunto duly
authorized as of the date first written above.
HEXCEL CORPORATION
By:
Name:
Title:
ACKNOWLEDGED AND AGREED:
[NAME OF BANK, DEPOSITARY]
By:
Name:
Title:
EXHIBIT F
HEXCEL CORPORATION AND SUBSIDIARIES
PROJECTED OPENING CONSOLIDATED BALANCE SHEET AS OF JANUARY
1, 1995
($000's Omitted)
(Unaudited)
Pre- Post-
Reorganization Reorganization Reorganization
Balances Adjustments(2) Balances
ASSETS
Cash 19,470(1) ($ 15,068) 4,402(1)
Accounts
Receivable 61,510 0 61,510
Inventories 47,324 0 47,324
Prepaid Expenses
& Other 4,044 0 4,044
Total Current
Assets
132,348 (15,068) 117,280
Net Fixed
Assets 83,611 0 83,611
Other Noncurrent
Assets 20,019 0 20,019
TOTAL ASSETS
$235,978 ($ 15,068) $220,910
LIABILITIES & EQUITY
Current Portion -- Long Term Debt
$8,071(3) $3,707(4) $ 11,778*
U.S. Revolving Debt Facility
0 15,448 15,448*
DIP Financing
0(5) 0(5) 0
Payables & Accruals
35,169(7) 17,490(7) 52,659**
Restructuring Accrual
13,613 0 13,613
TOTAL CURRENT LIABILITIES
56,853 36,645 93,498
Long Term Debt
15,015(3) 43,405(4) 58,420*
Long Term Liabilities
22,402 0 22,402
TOTAL LIABILITIES
94,270 80,050 174,320
LIABILITIES SUBJECT TO
COMPROMISE
141,391 (141,391) 0
Common Stock and Paid-in Capital
62,635 50,200(6) 112,835
Accumulated Deficit and Cumulative
Translation Adjustment
(62,318)(8) (3,927)(8) (66,245)
TOTAL EQUITY
317 46,273 46,590
TOTAL LIABILITIES & EQUITY
$235,978 ($15,068) $220,910
See Accompanying notes and Assumptions to the Financial
Statements. These Financial Statements and Accompanying
Notes and Assumptions have not been subject to audit or
review.
EXHIBIT G
REPRESENTATIONS AND WARRANTIES TO BE GIVEN
TO MUTUAL BY HEXCEL
ON AND AS OF THE EFFECTIVE DATE
All capitalized terms in this exhibit have
the same meanings as in the Standby
Purchase Commitment to which this exhibit is attached
1. Representations and Warranties. On the First Closing
Date, Hexcel will represent and warrant to Mutual under the
Standby Purchase Commitment as follows:
a. Hexcel has been duly organized and is validly
existing, in good standing and doing business as a
corporation under the laws of the State of Delaware, with
corporate power and authority to perform its obligations
under the Standby Purchase Commitment, the Note, the
Registration Rights Agreement and the Security Agreement
(the "Operative Documents").
b. The performance of the Operative Documents by
Hexcel and the consummation by Hexcel of the transactions
contemplated thereby have been duly authorized by all
necessary corporate action of Hexcel, and each of the
Operative Documents constitutes a valid and legally binding
instrument of Hexcel subject to applicable bankruptcy,
insolvency and similar laws affecting the rights of
creditors and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
c. The Rights have been duly authorized by all
necessary corporate action of Hexcel, and when issued in
accordance with such authorization and delivered by Hexcel,
will constitute legal, valid, binding and enforceable
obligations of Hexcel, subject to applicable bankruptcy,
insolvency and similar laws affecting the rights of
creditors and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
d. The Total Shares have been duly authorized, and
when issued and delivered as provided in the Standby
Purchase Commitment will be validly issued and outstanding,
fully paid and nonassessable and free of any preemptive
rights.
e. The performance by Hexcel under the Operative
Documents, the consummation by Hexcel of the transactions
therein contemplated and the compliance by Hexcel with the
terms thereof do not and will not conflict with, or result
in a breach or violation of any of the terms or provisions
of, or constitute a default under, the corporate charter or
bylaws of Hexcel, or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which
Hexcel is a party or by which any of its properties or
assets are bound (with such exceptions as would not have a
material adverse effect on the financial condition of Hexcel
or subject Mutual to any liability), or any applicable law,
rule, regulation, judgment, order or decree of government,
governmental instrumentality or court having jurisdiction
over Hexcel or any of its properties or assets; and no
consent, approval, authorization, order, registration or
qualification of or with any such government, governmental
instrumentality or court is required for the valid
authorization, execution, delivery and performance by Hexcel
of the Operative Documents, the issuance of the Rights, the
issuance of the shares upon the exercise of the Rights or
the Minimum Shares to be issued to Mutual in accordance with
the Standby Purchase Commitment, or the consummation by
Hexcel of the other transactions contemplated by the Plan,
except such consents, approvals, authorizations,
registrations or qualifications as may be required under
state securities or "blue sky" laws (or, with respect to the
Registration Rights Agreement, under Federal securities laws
as contemplated therein).
f. The (i) audited consolidated balance sheets of
Hexcel and its 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 (ii) unaudited consolidated balance sheet of
Hexcel and its subsidiaries as at July, 3, 1994 and the
related consolidated statements of income and cash flows for
the period then ended, including the related notes and
schedules thereto, are complete and correct in all material
respects, have been prepared in accordance with generally
accepted accounting principles, and present fairly the
consolidated financial position, results of operations and
cash flows of Hexcel and its subsidiaries as at the dates
and for the periods indicated. The unaudited consolidated
balance sheet of Hexcel and its subsidiaries as at July 3,
1994 and as set forth in Hexcel's quarterly report on Form
10-Q for the fiscal quarter ended July 3, 1994 is referred
to as the "Balance Sheet" and June 30, 1994 is referred to
as the "Balance Sheet Date."
g. The disclosure statement relating to the Plan,
including the exhibits thereto, does not (i) contain a
misstatement of a material fact or (ii) omit to state a
material fact necessary in order to make statements
contained therein not misleading.
h. As of their respective dates, Hexcel's Annual
Report on Form 10-K for its fiscal year ended December 31,
1993 and its quarterly reports on Form 10-Q for quarterly
periods ending after that date (collectively, the "SEC
Documents") were complete and correct in all material
respects and complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and
Exchange (the "SEC") promulgated thereunder applicable to
such SEC Documents. 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.
2. The representations and warranties in paragraph 1 above
shall survive the Second Closing Date for a period of
eighteen months.
EXHIBIT H
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS H-1
Section 1.1. Definitions H-1
ARTICLE II
REGISTRATION RIGHTS H-3
Section 2.1. Registration upon Request H-3
Section 2.2. Piggyback Registration H-4
Section 2.3. Registration Procedures H-6
Section 2.4. Preparation; Reasonable Investigation H-15
Section 2.5. Indemnification H-15
Section 2.6. Contribution H-18
Section 2.7. Nominees of Beneficial Owners H-19
Section 2.8. Restrictions on Sale of Securities by
the Company and Others H-20
ARTICLE III
OTHER TRANSFERS H-20
Section 3.1. Removal of Restrictive Legends H-20
ARTICLE IV
MISCELLANEOUS H-21
Section 4.1. Effectiveness H-21
Section 4.2. Submission to Jurisdiction; Consent to
Service of Process H-21
Section 4.3. Specific Enforcement; Other Remedies H-21
Section 4.4. Severability H-22
Section 4.5. Notices H-22
Section 4.6. Entire Agreement H-23
Section 4.7. Amendments H-23
Section 4.8. Descriptive Headings; References H-23
Section 4.9. Governing Law H-23
Section 4.10. Successors and Assigns H-23
Section 4.11. Supplementary Provisions H-24
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
Standby Purchase Commitment dated October __, 1994 (the
"Standby Purchase Commitment"), 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 Standby
Purchase Commitment, 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 Standby Purchase Commitment,
including the exhibits thereto.
(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 Securities and Exchange
Commission (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) the Total
Shares and (ii) any other securities issued or issuable with
respect to the Total 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 1933
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 1933 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 1933 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.
(d) "Person" means any individual, corporation,
partnership, firm, joint venture, association, joint-stock
company, trust, unincorporated organization, governmental
body or other entity.
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 date of the Second Closing and
ending on the earlier of (x) the fifth anniversary thereof
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 1933 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
1933 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 Standby Shares on the Second Closing
Date for an aggregate purchase price of at least
$21,000,000, 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 1933 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 any of its equity
securities under the 1933 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
1933 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 bepermitted 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 securities proposed to be sold by a
holder the exercise of whose demand registration rights
required the filing of the registration statement, (C)
third, the Registrable Securities held by Mutual requested
to be included in such registration, (D) fourth, the
Registrable Securities held by other holders of Registrable
Securities requested to be included in such registration,
pro rata, based on the respective number of Registrable
Securities requested to be included in such registration by
such holders and (E) fifth, 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 1933 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 1933 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 1933 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 1933
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 1933 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 1933 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 1933 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
referenced in paragraph 4.a. of the Standby Purchase
Commitment.
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 1933 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 of the Company 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 of the Company
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 1933 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 1933 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 1933 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 judgement 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,
aof 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 1933 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 1933 Act.
Section 2.5. Indemnification. (a) In the event
of any registration of any securities of the Company under
the 1933 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 1933 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 1933 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 1933 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
1933 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
1933 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 1933 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 1933 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 1933 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
Form 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) and not to enter into any agreements
requiring it to file during such period a registration
statement for any such sale by a securityholder.
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 1933 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 referenced in
paragraph 4.a. of the Standby Purchase Commitment.
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.
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 Standby Purchase Commitment
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,
except that Section 4.11 cannot be amended to adversely
affect John J. Lee without his consent.
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 holder of Registrable Securities
(other than Mutual) unless the Company shall have received a
copy of such agreement from such holder.
Section 4.11. Supplementary Provisions. Upon the sale
of 108,108 shares of Hexcel common stock to John J. Lee
("Lee") pursuant to the Plan and Lee's execution and
delivery to Mutual and the Company of his agreement to be
bound by the terms of this Agreement:
(a) such shares shall be deemed to be Registrable
Securities for all purposes of this Agreement;
(b) Clause (C) of paragraph (ii) of Section 2.2(a)
shall be amended as follows:
"(C) third, the Registrable Securities held
by Mutual and by Lee requested to be included in such
registration, pro rata, based on the respective number of
Registrable Securities requested to be included in such
registration by such holders";
(c) Lee shall be deemed a holder of Registrable
Securities who has agreed to be bound by this Agreement as
provided in Section 4.10 and a "subsequent holder" of
Registrable Securities for the purpose of Section 4.10, and
shall be entitled as such a holder to participate in
Piggyback Registrations as provided in Section 2.2 of this
Agreement, and to receive the information and notices
provided for therein; and
(d) notwithstanding anything else in the Agreement to
the contrary, with respect to any Demand Registration, Lee
shall be entitled to have such number of his Registrable
Securities registered as part of such Demand Registration as
may be agreed to by Mutual, but in any event Lee shall be
entitled to have included in such Demand Registration at
least the same percentage of his remaining Registrable
Securities as the percentage of Mutual's remaining
Registrable Securities which are being included in such
Demand Registration.
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:
REGISTRATION RIGHTS AGREEMENT
DATED AS OF _______ __, 1994
BETWEEN
HEXCEL CORPORATION
AND
MUTUAL SERIES FUND INC.
TABLE OF CONTENTS
PAGE
Purchase Commitment 4
Advance 4
Conditions 5
Representations, Warranties, Agreements and Understandings 7
Certain Agreements 10
Termination 10
First Closing 11
Second Closing 12
Assignment 12
Notices 12
Governing Law 13
Entire Agreement 13
EXHIBITS
EXHIBIT A - FORM OF PLAN
EXHIBIT B - REIMBURSEMENT OF EXPENSES, BREAK-UP FEE AND
OVERBID
EXHIBIT C - HEXCEL CORPORATION JOINT PLAN
EXHIBIT D - FORM OF NOTE
EXHIBIT E - FORM OF SECURITY AGREEMENT
EXHIBIT F - CONSOLIDATED 1994 REVISED BUSINESS PLAN
EXHIBIT G - REPRESENTATIONS AND WARRANTIES
EXHIBIT H - FORM OF REGISTRATION RIGHTS AGREEMENT
