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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HEXCEL CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Delaware 94-1109521
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(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
Two Stamford Plaza
281 Tresser Boulevard
Stamford, Connecticut 06901
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(Address of Principal Executive Offices) (Zip Code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1) please check the
following box. / /
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2) please check the following box. / /
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
- ------------------- -------------------------------
___% Convertible Subordinated New York Stock Exchange
Notes Due 2003
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
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(Title of Class)
Page 2 of 5 Pages
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The title and a description of the Notes being registered hereby is
incorporated herein by reference to the information appearing under
the caption "Description of Notes" in the form of prospectus included
in the Registration Statement on Form S-3 (File No. 333-05821) as
initially filed with the Securities and Exchange Commission (the
"Commission") on June 12, 1996, amended by Amendment No. 1 filed with
the Commission on July 3, 1996 and as may be amended from time to time
(the "Registration Statement"). In addition, the discussion under the
heading "Description of Notes" to be included in the form of
prospectus filed by the registrant pursuant to Rule 424(b) shall be
deemed to be incorporated by reference in this Registration Statement.
ITEM 2. EXHIBITS.
1. Restated Certificate of Incorporation of the Registrant.
2. Amended and Restated Bylaws of the Registrant.
3. Form of Indenture between the Registrant and First Trust of
California, National Association, as trustee, regarding the
Registrant's ___% Convertible Subordinated Notes Due 2003
(incorporated herein by reference to Exhibit 4 to the
Registrant's Registration Statement on Form S-3
(File No. 333-05821)).
4. Form of Note (included in Exhibit 3 hereto).
5. Form of Common Stock Certificate.
6. Registration Rights Agreement dated February 9, 1995 between the
Registrant and Mutual Series Fund Inc. (incorporated herein by
reference to Exhibit H to Exhibit B to Exhibit 2 to the Regis-
trant's Quarterly Report on Form 10-Q for the fiscal quarter
ended October 2, 1994).
7. Registration Rights Agreement dated February 29, 1996 between the
Registrant and Ciba-Geigy Limited (incorporated herein by
reference to Exhibit 10.22
Page 3 of 5 Pages
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to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995).
8. Registration Rights Agreement for Affiliates dated February 9,
1995 between the Registrant and the Eligible Holders (as defined
therein) (incorporated herein by reference to Exhibit E to
Exhibit 2 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended October 2, 1994).
9. Governance Agreement dated February 29, 1996 between the
Registrant and Ciba-Geigy Limited (incorporated herein by
reference to Exhibit 10.21 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995).
10. Hexcel Corporation Incentive Stock Plan (incorporated herein by
reference to Exhibit 4.3 to the Registrant's Registration
Statement on Form S-8 (File No. 333-1225)).
11. 1988 Management Stock Program (incorporated herein by reference
to Exhibit 28.1 to Post-Effective Amendment No. 1 to the
Registrant's Registration Statement on Form S-8
(File No. 33-17025)).
Page 4 of 5 Pages
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
HEXCEL CORPORATION
By:/s/ JOSEPH H. SHAULSON
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Name: Joseph H. Shaulson
Title: Vice President and Secretary
Dated: July 9, 1996
Page 5 of 5 Pages
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EXHIBIT 1
RESTATED CERTIFICATE OF INCORPORATION
OF
HEXCEL CORPORATION
(Pursuant to Sections 242 and 245 of
the Delaware General Corporation Law)
Hexcel Corporation, a corporation organized and existing under the
laws of the State of Delaware (the "Corporation"), does hereby certify as
follows:
1. The name of the Corporation is Hexcel Corporation. The
Corporation was originally incorporated in the State of Delaware as Hexcel
Merger Corporation on March 2, 1983. On May 2, 1983, an Agreement of Merger was
filed with the State of Delaware, whereby Hexcel Corporation, then a California
Corporation, was merged with and into Hexcel Merger Corporation, and the name of
Hexcel Merger Corporation was changed to Hexcel Corporation.
2. This Restated Certificate of Incorporation restates and integrates
and also further amends the Certificate of Incorporation of the Corporation, as
heretofore amended. This Restated Certificate of Incorporation was proposed by
the Board of Directors and duly adopted by the stockholders of the Corporation
in the manner and by the vote prescribed by Sections 242 and 245 of the General
Corporation Law of the State of Delaware. The text of the Restated Certificate
of Incorporation, as so amended and restated, is as follows:
1. NAME. The name of this Corporation is HEXCEL CORPORATION.
2. REGISTERED AGENT. The address in the State of Delaware of the
registered office of the Corporation is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle, and the name of its
registered agent at that address is The Corporation Trust Company.
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3. PURPOSE. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the "GCL").
4. CAPITALIZATION. The total number of shares which the Corporation is
authorized to issue is 120,000,000, consisting of 20,000,000 shares of Preferred
Stock without par value (hereinafter in this Certificate of Incorporation called
the "Preferred Stock"), and 100,000,000 shares of Common Stock with a par value
of $.01 per share (hereinafter in this Certificate called the "Common Stock").
5. PREFERRED STOCK. The Preferred Stock may be issued from time to time
in one or more classes or series. The Board of Directors is hereby authorized
to issue the Preferred Stock as Preferred Stock of any class or series and in
connection with any such class or series fix or alter the designations, rights,
preferences, limitations, qualifications, privileges and restrictions granted to
or imposed upon such class or series of Preferred Stock to the fullest extent
now or hereafter permitted by this Certificate of Incorporation and the laws of
the State of Delaware, including without limiting the generality of the
preceding clause, the authority to fix or alter distribution rights, dividend
rights (whether cumulative or otherwise) dividend rate, conversion or exchange
rights, subscription rights, voting rights, rights and terms of redemption
(including sinking fund provisions), the redemption price or prices, and the
liquidation preference of said shares. The Board of Directors is further
authorized to determine or alter the number of shares of Preferred Stock
constituting any such class or series and the designation thereof, and to
increase or decrease the number of shares of any class or series subsequent to
the issue of shares of that class or series, but not below the number of shares
of such class or series then outstanding. In case the number of shares of any
class or series shall be so decreased, the shares constituting such decrease
shall resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such class or series. Shares of
Preferred Stock that have been issued and reacquired in any manner by the
Corporation (excluding, until the Corporation elects to retire them, shares
which are held as treasury shares, but including shares redeemed, shares
purchased and retired and shares which have been converted into shares of Common
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Stock or exchanged into other securities) shall have the status of authorized
but unissued shares of Preferred Stock and may be reissued as a part of the
class or series of which they were originally a part or may be reissued as part
of another class or series of Preferred Stock, all subject to the conditions or
restrictions on issuance set forth in the resolution or resolutions adopted by
the Board of Directors providing for the issuance of any class or series of
Preferred Stock. The holders of Preferred Stock shall not have any preemptive
rights except to the extent such rights shall be specifically provided for in
the resolution or resolutions adopted by the Board of Directors providing for
the issuance thereof.
6. DIRECTORS.
6.1 NUMBER OF DIRECTORS. Except as provided in any certificate filed
pursuant to Section 151(g) of the GCL designating the number of shares of
Preferred Stock to be issued and the rights, preferences, privileges and
restrictions granted to and imposed on the holders of such designated Preferred
Stock, the authorized number of directors of the Corporation shall be not less
than three (3) nor more than fifteen (15). The exact number of directors within
such range may be changed from time to time in the manner provided in the Bylaws
of the Corporation (the "Bylaws"), or if the Bylaws do not so provide, by a
resolution passed by the Corporation's Board of Directors. The election of
directors need not be by written ballot unless the Bylaws so provide.
6.2 PREFERRED STOCK TERMS. Notwithstanding any other provision of this
Section 6, whenever the holder of any one or more classes or series of Preferred
Stock issued by the Corporation shall have the right, voting separately by class
or series, to elect directors at an annual or special meeting of stockholders,
the election, term of office, filling of vacancies, removal and other features
of such directorships shall be governed by the terms of this Certificate of
Incorporation applicable thereto, and by the terms of any applicable certificate
filed pursuant to Section 151(g) of the GCL designating the number of shares of
Preferred Stock to be issued and the rights, preferences, privileges and
restrictions granted to and imposed on the holder of such designated Preferred
Stock.
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6.3 REMOVAL OF DIRECTORS. Except as provided in Subsection 6.2 hereof or
in the Bylaws, a director may be removed from office at any time, with or
without cause, by the affirmative vote of the holders of a majority of the
outstanding shares entitled to vote at an election of directors. No reduction
in the number of directors shall have the effect of removing any director prior
to the expiration of his term.
6.4 VACANCIES. Except as provided in Subsection 6.2 hereof or in the
Bylaws, any vacancies in the Board of Directors for any reason, and any newly
created directorships, may be filled by the Board of Directors, acting by a
majority of the directors then in office, even though less than a quorum; and
any directors so chosen shall hold office until the next election of directors,
and until their successors shall be elected and qualified or until their earlier
death, resignation or removal.
6.5 MANAGEMENT BY DIRECTORS. The following provisions are inserted for
the management of the business and the conduct of the affairs of the
Corporation, and for further definition, limitation and regulation of the powers
of the Corporation and of its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
(b) In addition to the powers and authority expressly conferred upon
them by statute, this Certificate of Incorporation or the Bylaws, the directors
are hereby empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation and the Bylaws,
PROVIDED, HOWEVER, that no bylaw or provision of this Certificate of
Incorporation hereafter adopted or amended shall invalidate any prior act of the
directors which would have been valid absent such adoption or amendment.
7. ACTION BY STOCKHOLDERS; SPECIAL MEETINGS; VOTING. All actions required
or permitted to be taken by the Corporation's stockholders must be effected at a
duly called annual or special meeting and may not be effected by written consent
in lieu thereof. Special meetings of the stockholders of the Corporation may be
called at any time
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and for any purpose or purposes by the Board of Directors, the Chairman of the
Board of Directors, the Chief Executive Officer or by a committee of the Board
of Directors which has been duly designated by the Board of Directors and whose
powers and authority, as provided in a resolution of the Board of Directors or
in the Bylaws, include the power to call such meetings. If, and to the extent
that, any special meeting of stockholders may be called by any other person or
persons specified in any provision of the Certificate of Incorporation or any
amendment thereto or in any certificate filed under Section 151(g) of the GCL,
then such special meeting may also be called by such person or persons in the
manner, at the times and for the purposes so specified. Except as provided in
this Certificate of Incorporation or as otherwise provided in the Bylaws or by
law, a stockholder shall be entitled to one vote for each share held of record
on the record date fixed for the determination of stockholders entitled to vote
at a meeting or, if no such date is fixed, the date determined in accordance
with law. If any share is entitled to more or less than one vote on any matter,
all references herein to a majority or other proportion of shares shall refer to
a majority or other proportion of the voting power of holders of shares entitled
to vote on such matter.
8. AMENDMENT OF CERTIFICATE OF INCORPORATION AND BYLAWS.
8.1 CERTIFICATE OF INCORPORATION. The Corporation reserves the right to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereinafter prescribed by statute and
consistent with the Bylaws, and all rights conferred to stockholders, directors
and officers herein are granted subject to this reservation.
8.2 BYLAWS. The Board of Directors is authorized and empowered from time
to time in its discretion to make, alter, amend or repeal the Bylaws, except as
such power may be expressly restricted or limited by the GCL, this Certificate
of Incorporation or the Bylaws.
9. CERTAIN COMPROMISES OR ARRANGEMENTS.
Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its
stockholders or
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any class of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of the Corporation or of any
creditor or stockholder thereof or on the application of any receiver or
receivers appointed for the Corporation under Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or of any
receiver or receivers appointed for the Corporation under Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders of the Corporation, as the case may be,
and also on the Corporation.
10. ELIMINATION OF DIRECTORS' LIABILITY; INDEMNIFICATION.
10.1 ELIMINATION OF DIRECTORS' LIABILITY. The personal liability of the
directors of the Corporation is hereby eliminated to the fullest extent
authorized or permitted by the GCL, as the same exists or may hereafter be
amended. Any repeal or modification of this Subsection 10.1 shall be
prospective only, and shall not adversely affect the personal liability or
alleged personal liability of any director of the Corporation with respect to
any act or occurrence taking place prior to such repeal or modification.
10.2 INDEMNIFICATION AND INSURANCE.
(a) INDEMNIFICATION. The Corporation shall, to the fullest extent
authorized or permitted by the GCL, as the same exists or may hereafter be
amended, (i) indemnify its directors and officers from and against any and all
expenses (including attorneys' fees), liabilities or other matters and
(ii) advance expenses (including attorneys'
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fees) incurred by any and all of its directors and officers in connection with
any threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative. Except for proceedings to enforce
rights to indemnification, the Corporation shall not be obligated to indemnify
any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was authorized
by the Board of Directors. The Corporation may, to the extent authorized from
time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses similar to those provided in this Subsection
10.2(a) to the directors and officers of the Corporation to employees and agents
of the Corporation who are not directors or officers. The rights to
indemnification and advancement of expenses provided for in this Subsection
10.2(a) (i) shall not be deemed exclusive of any other rights to which those
entitled to indemnification may be entitled under the Bylaws, any agreement, any
vote of stockholders or disinterested directors or otherwise, (ii) shall
continue as to any person who has ceased to be a director, officer, employee or
agent and (iii) shall inure to the benefit of the heirs, executors and
administrators of any such person. Any repeal or modification of this
Subsection 10.2(a) shall be prospective only, and shall not adversely affect any
right to indemnification or advancement of expenses existing under this
Subsection 10.2(a) with respect to any act or occurrence taking place prior to
such repeal or modification.
(b) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of (i) the
Corporation (notwithstanding whether any such individual is also a director,
officer, employee or agent of another corporation) or (ii) another corporation,
partnership, joint venture, trust or other enterprise (if such director,
officer, employee or agent is or was serving as such at the request of the
Corporation) against any liability asserted against him and incurred by him in
any such capacity, whether or not the Corporation would have the power to
indemnify such person against such liability under the GCL.
11. SEVERABILITY. If any provision in this Certificate of Incorporation
is determined to be invalid, void, illegal or unenforceable, the remaining
provisions of this Certificate of Incorporation shall continue to be valid and
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enforceable and shall in no way be affected, impaired or invalidated thereby.
THE UNDERSIGNED, being the Vice President and Secretary of the
Corporation, does hereby certify that the Corporation has restated its
Certificate of Incorporation as set forth above, does hereby certify that such
restatement has been duly adopted in accordance with the applicable provisions
of Sections 242 and 245 of the General Corporation Law of the State of Delaware,
and does hereby make and file this Restated Certificate of Incorporation.
Dated: June 3, 1996
/s/ JOSEPH H. SHAULSON
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Joseph H. Shaulson
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EXHIBIT 2
BYLAWS OF HEXCEL CORPORATION
A DELAWARE CORPORATION
AMENDED AND RESTATED AS OF MAY 23, 1996
OFFICES
1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of the
Corporation is hereby fixed and located at 2 Stamford Plaza, Stamford,
Connecticut. The Board of Directors is hereby granted full power and authority
to change the place of said principal executive office from time to time.
2. OTHER OFFICES. The registered office of the Corporation in the State of
Delaware is hereby fixed and located at 1209 Orange Street, Wilmington,
Delaware, c/o The Corporation Trust Company. The Board of Directors is hereby
granted full power and authority to change the place of said registered office
within the State of Delaware from time to time. The Corporation may also have
offices in such other places in the United States or elsewhere as the Board of
Directors may from time to time designate or as the business of the Corporation
may from time to time require.
STOCKHOLDERS
3. PLACE OF MEETINGS. Stockholders' meetings shall be held at such place,
whether within or without the State of Delaware, as the Board of Directors
shall, by resolution, designate.
4. ANNUAL MEETINGS. Annual meetings of stockholders shall be held on such
dates and at such times as shall be designated from time to time by the Board of
Directors and stated in the notice of such annual meeting. At such annual
meetings directors shall be elected and such other business as may be properly
brought before such meeting shall be conducted.
Written notice of each annual meeting shall be mailed to or delivered to
each stockholder of record entitled to vote thereat not less than ten (10) days
nor more than sixty (60) days before the date of such annual meeting. Such
notice shall specify the place, the day,
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and the hour of such meeting, and the matters which the Board of Directors
intends to present for action by the stockholders.
Except to the extent, if any, specifically provided to the contrary in the
Certificate of Incorporation or these Bylaws, to be properly brought before an
annual meeting, all business must be either (a) specified in the notice of
annual meeting (or any supplement thereto) given by or at the direction of the
Board of Directors, (b) otherwise properly brought before the annual meeting by
or at the direction of the Board of Directors or (c) otherwise properly brought
before the annual meeting by a stockholder of record who complies with the
notice procedures set forth below. In addition to any other applicable
requirements, for business (including the nomination of a person or persons for
election to the Board of Directors) to be properly brought before any annual
meeting by a stockholder, the stockholder must have given timely notice thereof,
in proper form, to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than sixty (60) nor more
than ninety (90) days prior to the anniversary date of the immediately preceding
annual meeting; PROVIDED, HOWEVER, that in the event the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the date on which notice of the date of the annual meeting was mailed or
otherwise made public. To be in proper form, a stock-holder's notice to the
Secretary must be in writing and must set forth with respect to each matter the
stockholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and record
address of the stockholder proposing such business, (c) the class or series and
number of shares of the capital stock of the Corporation that are owned
beneficially or of record by the stockholder, (d) as to each person whom the
stockholder proposes to nominate for election to the Board of Directors, (i) the
name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person
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and (iii) the class or series and number of shares of capital stock of the
Corporation that are owned beneficially or of record by the person, (e) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including their name(s)) in connection with the
proposal of such business (or the nomination of any person or persons for
election to the Board of Directors) by any stockholder and any material interest
of such stockholder in such business (or nomination), (f) any other information
that would be required to be disclosed in a proxy statement or other filing
required to be made in connection with the solicitation of proxies for the
proposal (or the election of a person or persons to the Board of Directors)
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder if such stockholder were engaged in such a
solicitation and (g) a representation that such stockholder or a representative
thereof intends to appear in person at the annual meeting to bring such business
before the meeting (or nominate a person or persons for election to the Board of
Directors). Any such notice relating to the nomination of a person or persons
for election to the Board of Directors must be accompanied by a written consent
of each proposed nominee to being named as a nominee and to serve as a director
if elected.
The Chairman of the annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 4 and any such
business not properly brought before the meeting shall not be transacted at the
meeting.
5. SPECIAL MEETINGS. Special meetings of the stockholders may be called at any
time and for any purpose or purposes by the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or by a committee of the Board of
Directors which has been duly designated by the Board of Directors and whose
powers and authority, as provided in a resolution of the Board of Directors or
in these Bylaws, include the power to call such meetings. If and to the extent
that any special meeting of stockholders may be called by any other person or
persons specified in any provision of the Certificate of Incorporation or any
amendment thereto, or any certificate filed under Section 151(g) of the General
Corporation Law of
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the State of Delaware (the "GCL") designating the number of shares of Preferred
Stock to be issued and the rights, preferences, privileges and restrictions
granted to and imposed on the holders of such designated Preferred Stock, then
such special meeting may also be called by such person or persons in the manner,
at the times and for the purposes so specified. Except in special cases where
other express provision is made by statute, notice of such special meeting shall
be given in the same manner as for an annual meeting of stockholders. Such
notice shall also specify the general nature of the business to be transacted at
the meeting, and no business shall be transacted at the special meeting except
as specified in such notice (or any supplement thereto).
6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any stockholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned from time to time
by the chairman of such meeting or by the vote of a majority of the shares
present in person or represented by proxy at such meeting, but in the absence of
a quorum no other business may be transacted at such meeting.
Notice of an adjourned meeting need not be given if (a) the meeting is
adjourned for thirty (30) days or less, (b) the time and place of the adjourned
meeting are announced at the meeting at which the adjournment is taken, and (c)
no new record date is fixed for the adjourned meeting. Otherwise, notice of the
adjourned meeting shall be given as if the adjourned meeting were a new meeting.
7. VOTING. Except as otherwise provided by applicable law, the Certificate of
Incorporation or these Bylaws, a stockholder shall be entitled to one vote for
each share held of record on the record date fixed for the determination of the
stockholders entitled to notice of and to vote at a meeting or, if no such date
is fixed, the date determined in accordance with applicable law. If any share
is entitled to more or less than one vote on any matter, all references herein
to a majority or other proportion of shares shall refer to a majority or other
proportion of the voting power of shares entitled to vote on such matter.
8. QUORUM. A majority of the outstanding shares entitled to vote, represented
in person or by proxy, shall
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constitute a quorum for the transaction of business. No business may be
transacted at a meeting in the absence of a quorum other than the adjournment of
such meeting, except that if a quorum is present at the commencement of a
meeting, business may be transacted until the meeting is adjourned even though
the withdrawal of stockholders results in less than a quorum being present in
person or by proxy at such meeting. If a quorum is present at a meeting, the
affirmative vote of a majority of the shares present or represented by proxy at
the meeting and entitled to vote on any matter shall be the act of the
stockholders unless the vote of a larger number is required by applicable law,
the Certificate of Incorporation or these Bylaws. If a quorum is present at the
commencement of a meeting but the withdrawal of stockholders results in less
than a quorum being present in person or by proxy at such meeting, the
affirmative vote of a majority of the shares required to constitute a quorum
shall be the act of the stockholders unless the vote of a larger number is
required by applicable law, the Certificate of Incorporation or these Bylaws.
9. PROXIES. A stockholder may be represented at any meeting of stockholders by
a written proxy signed by the person entitled to vote or by such person's duly
authorized attorney-in-fact. A proxy must bear a date within three (3) years
prior to the meeting, unless the proxy specifies a different length of time. A
revocable proxy is revoked by a writing delivered to the Secretary of the
Corporation stating that the proxy is revoked or by a subsequent proxy executed
by, or by attendance at the meeting and voting in person by, the person
executing the proxy.
10. CHAIRMAN AND SECRETARY AT MEETINGS. At any meeting of stockholders, the
Chairman of the Board of Directors, or in his absence, a person designated by
the Board of Directors, shall preside at and act as chairman of the meeting.
The Secretary, or in his absence a person designated by the chairman of the
meeting, shall act as secretary of the meeting.
11. INSPECTORS. The Board of Directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath to
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faithfully execute the duties of inspector. The inspector(s) shall determine
the number of shares of capital stock of the Corporation outstanding and the
voting power of each, the number of shares present or represented by proxy at
the meeting, the existence of a quorum, the validity and effect of proxies, and
shall receive votes, ballots or consents, count and tabulate all votes, ballots
or consents, determine the results of any election or vote, and do such acts as
are proper to conduct the election or vote with fairness to all stockholders.
At the request of the chairman of the meeting, the inspectors shall make a
written report of any matters determined by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
12. LIST OF STOCKHOLDERS. The Secretary of the Corporation shall prepare and
make, at least ten (10) days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
DIRECTORS
13. POWERS. Subject to any limitations contained in the Certificate of
Incorporation, these Bylaws or the GCL as to actions to be authorized or
approved by the stockholders, and subject to the duties of directors as
prescribed by these Bylaws, all corporate powers shall be exercised by or under
the ultimate direction of, and the business and affairs of the Corporation shall
be managed by, or under the ultimate direction of, the Board of Directors.
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14. CERTAIN DEFINITIONS. For purposes of these Bylaws:
Any person shall be deemed to "BENEFICIALLY OWN", to have "BENEFICIAL
OWNERSHIP" of, or to be "BENEFICIALLY OWNING" any securities (which securities
shall also be deemed "BENEFICIALLY OWNED" by such person) that such person is
deemed to "beneficially own" within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, as in effect on February 29, 1996.
"CIBA" means Ciba-Geigy Limited, a Swiss corporation, or such
corporation(s) as may succeed to the rights of Ciba-Geigy Limited, pursuant to
that certain letter agreement dated as of May [ ], 1996 between the
Corporation and Ciba-Geigy Limited or as otherwise permitted by the Governance
Agreement.
"CIBA DIRECTORS" means Ciba Nominees who are elected or appointed to serve
as members of the Board of Directors.
"CIBA ENTITY" means any Subsidiary of Ciba that holds Voting Securities.
"CIBA NOMINEES" means such persons as are so designated by Ciba, as such
designations may change from time to time, to serve as members of the Board of
Directors pursuant to Sections 17 and 18.
"GOVERNANCE AGREEMENT" means the Governance Agreement dated as of
February 29, 1996 between Ciba and the Corporation.
"INDEPENDENT DIRECTOR" means a director of the Corporation who is not a
Ciba Director and who (i) is not and has never been an officer, employee or
director of Ciba or any affiliate (other than the Corporation) or associate of
Ciba and (ii) has no affiliation or compensation, consulting or contractual
relationship with Ciba or any of its affiliates (other than the Corporation)
such that a reasonable person would regard such director as likely to be unduly
influenced by Ciba or any of its affiliates (other than the Corporation).
"PERSON" or "PERSON" means any individual, group, corporation, partnership,
joint venture, trust, business
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association, organization, governmental entity or other entity.
"SUBSIDIARY" means, with respect to any Person, as of any date of
determination, any other Person as to which such Person owns, directly or
indirectly, or otherwise controls, more than 50% of the voting shares or other
similar interests.
"SIGNIFICANT SUBSIDIARY" has the meaning set forth in Rule 1-02 of
Regulation S-X under the Securities Act of 1933, as amended, as in effect on
February 29, 1996.
"TOTAL VOTING POWER OF THE CORPORATION" means the total number of votes
that may be cast in the election of directors of the Corporation if all Voting
Securities outstanding or treated as outstanding pursuant to the final sentence
of this definition were present and voted at a meeting held for such purpose.
The percentage of the Total Voting Power of the Corporation Beneficially Owned
by any Person is the percentage of the Total Voting Power of the Corporation
that is represented by the total number of votes that may be cast in the
election of directors of the Corporation by Voting Securities Beneficially Owned
by such Person. In calculating such percentage, the Voting Securities
Beneficially Owned by any Person that are not outstanding but are subject to
issuance upon exercise or exchange of rights of conversion or any options,
warrants or other rights Beneficially Owned by such Person shall be deemed to be
outstanding for the purpose of computing the percentage of the Total Voting
Power represented by Voting Securities Beneficially Owned by such Person, but
shall not be deemed to be outstanding for the purpose of computing the
percentage of the Total Voting Power represented by Voting Securities
Beneficially Owned by any other Person.
"VOTING SECURITIES" means the Common Stock of the Corporation and any other
securities of the Corporation or any subsidiary of the Corporation entitled to
vote generally in the election of directors of the Corporation or such
subsidiary of the Corporation.
15. NUMBER OF DIRECTORS.
(a) Except as provided in Subsection 6.1 of the Certificate of
Incorporation and subject to compliance
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with Section 17, the authorized number of directors of this Corporation shall be
not less than three (3) nor more than fifteen (15), with the exact number of
directors within such range specified in subsection (b) below, or, if not so
specified, with the exact number of directors within such range fixed from time
to time by resolution of the Board of Directors.
(b) It is hereby specified that this Corporation shall have ten (10)
directors, two of whom shall be the Chief Executive Officer (who shall also be
Chairman of Board) and the President of the Corporation.
16. ELECTION.
(a) Directors shall hold office until the annual meeting next following
their election and until their successors are nominated, elected and qualified
pursuant to these Bylaws; subject, however, to their prior resignation, death or
removal as provided by the Certificate of Incorporation, these Bylaws or
applicable law.
Subject to the Certificate of Incorporation and Subsections (b), (c),
(d) and (e) hereof, any vacancies in the Board of Directors for any reason, and
any newly created directorships resulting from any increase in the number of
directors, may be filled by the Board of Directors, acting by a majority of the
directors then in office, even if less than a quorum; and any directors so
chosen shall hold office until the next election of the class for which such
directors shall have been chosen, and until their successors shall be elected
and qualified or until their earlier death, resignation or removal.
(b) If at any time a member of the Board dies, resigns or is removed, a
new member shall be designated to replace such member until the next election of
directors. If, consistent with Section 17, the replacement director is to be a
Ciba Director, Ciba shall designate the replacement Ciba Director. If the
former member was the Chief Executive Officer or President, the replacement
Chief Executive Officer or President, respectively, shall be the replacement.
Except as set forth in paragraph (d) below, if consistent with Section 17, the
replacement director is to be an Independent Director (other than the Chief
Executive Officer or President), the remaining Independent Directors (including
the Chief Executive
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Officer and the President, respectively, if he or she is an Independent
Director) shall designate the replacement Independent Director.
(c) Subject to paragraph (d) below, if at any time the percentage of the
Total Voting Power of the Corporation Beneficially Owned by Ciba decreases to a
point at which the number of Ciba Nominees entitled to be nominated to the Board
of Directors in accordance with these Bylaws in an election of directors
presented to stockholders would decrease, within 10 days thereafter Ciba shall
cause a sufficient number of Ciba Directors to resign from the Board of
Directors so that the number of Ciba Directors on the Board of Directors after
such resignation(s) equals the number of Ciba Nominees that Ciba would have been
entitled to designate had an election of directors taken place at such time.
Ciba shall also cause a sufficient number of Ciba Directors to resign from any
relevant committees of the Board of Directors so that such committees are
comprised in the manner contemplated by Section 19 after giving effect to such
resignations. Any vacancies created by the resignations required by this
Subsection (c) shall be filled by Independent Directors.
(d) If at any time the percentage of the Total Voting Power of the
Corporation Beneficially Owned by Ciba decreases as a result of an issuance of
Voting Securities by the Corporation, Ciba may notify the Corporation that Ciba
intends to acquire a sufficient amount of additional Voting Securities necessary
to maintain its then current level of Board of Directors representation within
90 days, PROVIDED, HOWEVER, that if during such period (or any extension under
this proviso), Ciba is prohibited from purchasing Voting Securities in order to
comply with applicable law or refrains from such purchases at the Corporation's
request, such period shall be extended by the number of days during which Ciba
is so prohibited or so refrains. In such event, until the end of such period
(and thereafter if Ciba in fact restores its percentage of the Total Voting
Power of the Corporation during such period and provided that Ciba continues to
maintain the requisite level of Beneficial Ownership of Voting Securities in
accordance with Section 17) the Board of Directors shall continue to have the
number of Ciba Directors that corresponds to the percentage of the Total Voting
Power of the Corporation Beneficially Owned
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by Ciba prior to such issuance of Voting Securities by the Corporation.
(e) Whenever the holders of any one or more classes or series of Preferred
Stock issued by the Corporation shall have the right, voting separately by class
or series, to elect directors at any annual or special meeting of stockholders,
the election, term of office, filling of vacancies, removal and other features
of such directorships shall be governed by the terms of the Certificate of
Incorporation applicable thereto, and by the terms of any certificate filed
pursuant to Section 151(g) of the GCL designating such class or series and the
rights, preferences, privileges and restrictions granted to and imposed on the
holders of such designated Preferred Stock.
17. CIBA BOARD REPRESENTATION. (a) If Ciba Beneficially Owns 30% or more of
the Total Voting Power of the Corporation determined in accordance with
paragraph (e) of this Section 17, the Corporation shall exercise all authority
under applicable law to cause any slate of directors presented to stockholders
for election to the Board of Directors to consist of such nominees that, if
elected, would result in the entire Board of Directors consisting of four Ciba
Directors, the Chief Executive Officer (who shall also be the Chairman of the
Board), the President and four additional Independent Directors.
(b) If Ciba Beneficially Owns less than 30% but at least 20% of the Total
Voting Power of the Corporation determined in accordance with paragraph (e) of
this Section 17, the Corporation shall exercise all authority under applicable
law to cause any slate of directors presented to stockholders for election to
the Board of Directors to consist of such nominees that, if elected, would
result in the entire Board of Directors consisting of three Ciba Directors, the
Chief Executive Officer (who shall also be the Chairman of the Board), the
President and five additional Independent Directors.
(c) If Ciba Beneficially Owns less than 20% but at least 15% of the Total
Voting Power of the Corporation determined in accordance with paragraph (e) of
this Section 17, the Corporation shall exercise all authority under applicable
law to cause any slate of directors presented to stockholders for election to
the Board of
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Directors to consist of such nominees that, if elected, would result in the
entire Board of Directors consisting of two Ciba Directors, the Chief Executive
Officer (who shall also be the Chairman of the Board), the President and six
additional Independent Directors.
(d) If Ciba Beneficially Owns less than 15% but at least 10% of the Total
Voting Power of the Corporation determined in accordance with paragraph (e) of
this Section 17, the Corporation shall exercise all authority under applicable
law to cause any slate of directors presented to stockholders for election to
the Board of Directors to consist of such nominees that, if elected, would
result in the entire Board of Directors consisting of one Ciba Director, the
Chief Executive Officer (who shall also be the Chairman of the Board), the
President and seven additional Independent Directors.
(e) In order to determine (x) the number of Ciba Nominees to be included
in any slate of directors to be presented to stockholders for election to the
Board of Directors and (y) the percentage of the Total Voting Power of the
Corporation Beneficially Owned by Ciba for purposes of Sections 19 and 20, Ciba
shall be deemed to Beneficially Own a percentage of the Total Voting Power of
the Corporation that is no more than (1) 49.9% of the Total Voting Power of the
Corporation (or such greater percentage as Ciba in fact Beneficially Owns after
February 29, 1996) less (2) the percentage of the Total Voting Power of the
Corporation represented by any Voting Securities disposed of by Ciba or any Ciba
Entity since February 29, 1996.
18. DESIGNATION OF SLATE. Any Ciba Nominees that are included in a slate of
directors pursuant to Section 17 shall be designated by Ciba, and any
Independent Director nominees who are to be included in any slate of directors
pursuant to Section 17 shall be designated by majority vote of the then
incumbent Independent Directors (including the Chief Executive Officer (who
shall also be the Chairman of the Board) and the President if he or she is an
Independent Director). The Corporation's nominating committee shall nominate
each person so designated.
19. CIBA COMMITTEE MEMBERSHIP. Subject to applicable law, rules and
regulations (including those of applicable self-regulatory organizations), Ciba
Directors shall
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serve on each committee of the Board of Directors, including the finance, audit,
nominating, and compensation committees of the Board of Directors, as follows:
(i) so long as Ciba Beneficially Owns 40% or more of the Total Voting Power of
the Corporation determined in accordance with Section 17(e), each committee of
the Board of Directors shall consist of the same number of Ciba Directors as
Independent Directors and (ii) at all other times, each such committee shall be
comprised such that Ciba's representation on such committee is at least
proportionate to its representation on the Board of Directors unless the
committee is comprised of three members or less, in which case at least one Ciba
Director shall serve.
20. APPROVALS. (a) So long as Ciba Beneficially Owns 40% or more of the Total
Voting Power of the Corporation determined in accordance with Section 17(e),
neither the Board of Directors nor any committee of the Board of Directors shall
take any action, including approval, authorization or ratification of any action
or inaction by officers, agents or employees of the Corporation, without the
affirmative vote of at least one Ciba Director and one Independent Director.
(b) The Board of Directors shall not authorize, approve or ratify any of
the following actions without the approval of a majority of the Ciba Directors
(x) so long as Ciba Beneficially Owns 33% or more of the Total Voting Power of
the Corporation determined in accordance with Section 17(e) and, if Ciba's
percentage ownership of the Total Voting Power of the Corporation is reduced
below 33% as so determined by an issuance of Voting Securities by the
Corporation, until 10 business days after the Corporation notifies Ciba in
writing of such issuance, and (y) during the 90-day period following an issuance
of Voting Securities by the Corporation that causes Ciba to Beneficially Own
less than 33% of the Total Voting Power of the Corporation as so determined if
Ciba shall have notified the Corporation within 10 business days after Ciba's
receipt of a written notification of such issuance that Ciba intends to acquire
a sufficient amount of Voting Securities within such 90-day period so that it
will Beneficially Own at least 33% of the Total Voting Power of the Corporation
determined in accordance with Section 17(e) by the end of such 90-day period:
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(i) any merger, consolidation, acquisition or other business combination
involving the Corporation or any subsidiary of the Corporation if the value of
the consideration to be paid or received by the Corporation in any such
individual transaction or in such transaction when added to the aggregate value
of the consideration paid or received by the Corporation in all other such
transactions approved by the Board of Directors during the prior 12 months
exceeds the greater of (x) $75 million or (y) 11% of the Corporation's total
consolidated assets;
(ii) any sale, transfer, assignment, conveyance, lease or other disposition
or any series of related dispositions of any assets, business or operations of
the Corporation or any of its subsidiaries if the value of the assets, business
or operations so disposed exceeds the greater of (x) $75 million or (y) 11% of
the Corporation's total consolidated assets;
(iii) any issuance by the Corporation or any Significant Subsidiary of
equity securities (other than pursuant to customary employee or director stock
option or incentive compensation or similar plans and other than transactions
solely among the Corporation and its subsidiaries) or of any bonds, debentures,
notes or other securities convertible into, exchangeable for or exercisable for
equity securities if the aggregate net proceeds to the Corporation of such
issuance or of such issuance when added to the aggregate net proceeds of all
such issuances approved by the Board of Directors during the prior 12 months
exceeds the greater of (x) $75 million or (y) 11% of the Corporation's total
consolidated assets; and
(iv) any new capital expenditure program or any capital expenditure that is
not part of a capital expenditure program previously approved by the Board of
Directors, if the amount or anticipated amount of such program or expenditure or
of such program or expenditure when added to the aggregate amount of capital
expenditures not so approved by the Board of Directors during the prior 12
months exceeds the greater of (x) $50 million or (y) 7% of the Corporation's
total consolidated assets.
21. NONEXCLUSIVITY. Ciba's rights under Sections 14, 15, 16, 17, 18, 19, and
20 shall not be deemed exclusive of any rights related to similar matters to
which Ciba
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may be entitled under these Bylaws, the Certificate of Incorporation, any
agreement (including the Governance Agreement) or otherwise.
22. QUORUM AND REQUIRED VOTE. A majority of the directors then in office shall
constitute a quorum for the transaction of business, provided that unless the
authorized number of directors is one, the number constituting a quorum shall
not be less than the greater of one-third of the authorized number of directors
or two directors. Except as otherwise provided by the Certificate of
Incorporation or these Bylaws, every act or decision done or made by a majority
of the directors present at a meeting duly held at which a quorum is present is
the act of the Board of Directors. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority of the
required quorum for such meeting. A majority of the directors present at a
meeting, whether or not a quorum is present, may adjourn the meeting to another
time and place.
23. REMOVAL. Except as provided in the Certificate of Incorporation and in
Section 16 hereof, a director may be removed from office at any time, with or
without cause, by the affirmative vote of the holders of a majority of the
outstanding shares entitled to vote at an election of directors. No reduction
in the number of directors shall have the effect of removing any director prior
to the expiration of his term.
24. RESIGNATION. Any director may resign by giving written notice to the
Chairman of the Board, the Chief Executive Officer, the Secretary or the Board
of Directors. Such resignation shall be effective when given unless the notice
specifies a later time. The resignation shall be effective regardless of
whether it is accepted by the Corporation.
25. COMPENSATION. If the Board of Directors so resolves, the directors,
including the Chairman of the Board, shall receive compensation and expenses of
attendance at meetings of the Board of Directors and committees of the Board of
Directors. Nothing herein shall preclude any director from serving the
Corporation in another capacity and receiving compensation for such service.
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26. COMMITTEES. Subject to Section 19, the Board of Directors may, by
resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors, to
serve at the pleasure of the Board of Directors. In the absence or
disqualification of any member of a committee of the Board of Directors, the
other members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may, subject to Section 19,
unanimously appoint another member of the Board of Directors to act in the place
of such absent or disqualified member. The Board of Directors may, subject to
Section 19, designate one or more directors as alternate members of a committee
who may replace any absent member at any meeting of the committee. To the
extent permitted by resolution of the Board of Directors, a committee may
exercise all of the authority of the Board of Directors to the extent permitted
by Section 141(c) of the GCL.
27. TIME AND PLACE OF MEETINGS AND TELEPHONE MEETINGS. Immediately following
each annual meeting of stockholders (or at such other time and place as may be
determined by the Board of Directors), the Board of Directors shall hold a
regular meeting for purposes of organizing the Board of Directors, electing
officers, appointing committees and transacting other business. The Board of
Directors may establish by resolution the times, if any, that other regular
meetings of the Board of Directors shall be held. All meetings of directors
shall be held at the principal executive office of the Corporation or at such
other place, whether within or without the State of Delaware, as shall be
designated in the notice for the meeting or in a resolution of the Board of
Directors. Directors may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all directors
participating in such meeting can hear each other.
28. CALL. Meetings of the Board of Directors, whether regular or special, may
be called by the Chairman of the Board, the Chief Executive Officer, the
Secretary or any two directors.
29. NOTICE. Regular meetings of the Board of Directors may be held without
notice if the date and time of such meetings have been fixed by the Board of
Directors.
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Special meetings shall be held upon four days' notice by mail, 24 hours notice
delivered personally or by telephone, telegraph or confirmed fax or on such
shorter notice as the person or persons calling such meeting may deem necessary
or appropriate under the circumstances. Regular meetings shall be held upon
similar notice if notice is required for such meetings. Neither a notice nor a
waiver of notice need specify the purpose of any regular or special meeting.
Notice sent by mail, telegram or fax shall be addressed to a director at his
business or home address/fax number as shown upon the records of the
Corporation, or at such other address/fax number as the director specifies in
writing delivered to the Corporation, or if such an address/fax number is not so
shown on such records and no written instructions have been received from the
director, at the place at which meetings of directors are regularly held. Such
mailing, telegraphing, delivery or transmittal, as above provided, shall be due,
legal and personal notice to such director. If a meeting is adjourned for more
than 24 hours, notice of the adjourned meeting shall be given prior to the time
of such meeting to the directors who were not present at the time of the
adjournment.
30. MEETING WITHOUT REGULAR CALL AND NOTICE. The transaction of business at
any meeting of the Board of Directors, however called and noticed or wherever
held, is as valid as though transacted at a meeting duly held after regular call
and notice if a quorum is present and if, either before or after the meeting,
each of the directors not present signs a written waiver of notice, a consent to
holding the meeting or an approval of the minutes of the meeting. For such
purposes, a director shall not be considered present at a meeting if, although
in attendance at the meeting, the director protests the lack of notice prior to
the meeting or at its commencement.
31. ACTION WITHOUT MEETING. Any action required or permitted to be taken by
the Board of Directors may be taken without a meeting, if all of the members of
the Board of Directors individually or collectively consent in writing to such
action. In addition, all directors (including those who are not members of a
particular committee) shall receive notice of, and shall be entitled to attend,
all meetings of any committee of the Board of Directors. Only those directors
who are members of a
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particular committee shall be entitled to vote at meetings thereof.
32. COMMITTEE MEETINGS. The principles set forth in Sections 27 through 31 of
these Bylaws shall also apply to committees of the Board of Directors and to
actions taken by such committees.
33. HONORARY ADVISORS TO THE BOARD. The Board of Directors may appoint one or
more Honorary Advisors, who shall hold such position for such period, shall have
such authority and perform such duties as the Board of Directors may specify,
subject to change at any time by the Board of Directors. An Honorary Advisor to
the Board of Directors shall not be a director for any purpose or with respect
to any provision of the Certificate of Incorporation, these Bylaws or of the
GCL, and shall have no vote as a director. However, an Honorary Advisor to the
Board of Directors may receive such compensation and expense reimbursement as
the Board of Directors shall from time to time determine.
OFFICERS
34. TITLES AND RELATION TO BOARD OF DIRECTORS. The officers of the Corporation
shall include a Chief Executive Officer, a President, a Secretary and a
Treasurer. The Board of Directors may also choose a Chairman of the Board, one
or more Vice Chairmen of the Board, a Chief Operating Officer, a Chief Financial
Officer, a General Counsel, and one or more Vice Presidents (who may be
designated Executive or Senior Vice Presidents), Assistant Secretaries,
Assistant Treasurers or other officers. All officers shall perform their duties
and exercise their powers subject to
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the direction of the Chief Executive Officer and the overriding direction of the
Board of Directors. If there shall occur a vacancy in any office, in the
absence of the appointment of a replacement by the Board of Directors, the Chief
Executive Officer shall have the right and power to appoint a Secretary, a
Treasurer, a Chief Operating Officer, a Chief Financial Officer, a General
Counsel, one or more additional Vice Presidents (who may be designated Executive
or Senior Vice Presidents), one or more Assistant Secretaries and one or more
Assistant Treasurers, all of whom shall serve at the pleasure of the Board of
Directors, and shall perform their duties and exercise their powers subject to
the direction of the Chief Executive Officer and the overriding direction of the
Board of Directors. Any number of offices may be held simultaneously by the
same person.
35. ELECTION, TERM OF OFFICE AND VACANCIES. At its regular annual meeting, the
Board of Directors shall choose the officers of the Corporation. No officer
need be a member of the Board of Directors except the Chairman of the Board, the
Chief Executive Officer and the President. The officers shall hold office until
their successors are chosen, except that the Board of Directors may remove any
officer at any time. Subject to Section 34 of these Bylaws, if an office
becomes vacant for any reason, the vacancy shall be filled by the Board of
Directors.
36. RESIGNATION. Any officer may resign at any time upon written notice to the
Corporation without prejudice to the rights, if any, of the Corporation under
any contract to which the officer is a party. Such resignation shall be
effective when given unless the notice specifies a later time. The resignation
shall be effective regardless of whether it is accepted by the Corporation.
37. COMPENSATION. The Board of Directors shall fix the compensation of the
Chairman of the Board, any Vice Chairman, the Chief Executive Officer and the
President and may fix the salaries of other employees of the Corporation
including the other officers. If the Board of Directors does not fix the
salaries of the other officers, the Chief Executive Officer shall fix such
salaries.
38. CHAIRMAN OF THE BOARD. The Chairman of the Board shall, if present,
preside at all meetings of the Board of Directors, and exercise and perform such
other powers and duties as may be from time to time assigned to him by the Board
of Directors or prescribed by these Bylaws.
39. CHIEF EXECUTIVE OFFICER. Unless otherwise determined by the Board of
Directors, the Chief Executive Officer shall be deemed general manager of the
Corporation. The Chief Executive Officer shall be the Chairman of the Board,
shall be entitled to attend all meetings of the Board of Directors and any
committees thereof and shall effectuate orders and resolutions of the Board of
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Directors and exercise such other powers and perform such other duties as the
Board of Directors shall from time to time prescribe.
40. PRESIDENT AND VICE PRESIDENTS. In the absence or disability of the Chief
Executive Officer and Chairman of the Board, the President, and in the absence
or disability of the President, the Vice President, if any, or if more than one,
the Vice Presidents in order of their rank as fixed by the Board of Directors
or, if not so ranked, the Vice President designated by the Board of Directors,
shall perform all the duties of the Chief Executive Officer, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
Chief Executive Officer. The President and Vice Presidents shall have such
other powers and perform such other duties as from time to time may be
prescribed for them by the Board of Directors or these Bylaws.
41. SECRETARY. The Secretary (or in his absence an Assistant Secretary or, if
there be no Assistant Secretaries, another person designated by the Board of
Directors) shall have the following powers and duties:
(a) RECORD OF CORPORATE PROCEEDINGS. The Secretary shall attend all
meetings of the Board of Directors and its committees and shall record all votes
and the minutes of such meetings in a book to be kept for that purpose at the
principal executive office of the Corporation or at such other place as the
Board of Directors may determine. The Secretary shall keep at the Corporation's
principal executive office the original or a copy of these Bylaws, as amended
from time to time.
(b) RECORD OF SHARES. Unless a transfer agent is appointed by the Board
of Directors to keep a share register, the Secretary shall keep at the principal
executive office of the Corporation a share register showing the names of the
stockholders and their addresses, the number and class of shares held by each,
the number and date of certificates issued, and the number and date of
cancellation of each certificate surrendered for cancellation.
(c) NOTICES. The Secretary shall give such notices as may be required by
law or these Bylaws.
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(d) ADDITIONAL POWERS AND DUTIES. The Secretary shall exercise such other
powers and perform such other duties as the Board of Directors or the Chief
Executive Officer shall from time to time prescribe.
42. TREASURER. Unless otherwise determined by the Board of Directors, the
Treasurer of the Corporation shall be its chief financial officer, and shall
have custody of the corporate funds and securities and shall keep adequate and
correct accounts of the Corporation's properties and business transactions. The
Treasurer shall disburse such funds of the Corporation as may be ordered by the
Board of Directors or by one or more persons authorized by the Board of
Directors, taking proper vouchers for such disbursements, and when requested
shall render to the Chief Executive Officer, the Board of Directors and, if
applicable, the Chief Financial Officer, an account of all transactions and the
financial condition of the Corporation and shall exercise such other powers and
perform such other duties as the Board of Directors, the Chief Executive Officer
or, if applicable, the Chief Financial Officer shall prescribe.
43. OTHER OFFICERS AND AGENTS. Such other officers and agents as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
SHARES
44. CERTIFICATES. Every stockholder shall be entitled to have a certificate or
certificates certifying the number and class of shares of the capital stock of
the Corporation owned by him. All such certificates shall be signed in the
manner prescribed in the GCL. Any signature on such certificates may be a
facsimile signature. The Board of Directors shall have the power to appoint one
or more transfer agents and/or registrars for the transfer or registration of
certificates of stock of any class, and may require stock certificates to be
countersigned or registered by one or more of such transfer agents and/or
registrars.
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45. TRANSFERS OF SHARES OF CAPITAL STOCK. Transfers of shares shall be made
only upon the transfer books of the Corporation, kept at the office of the
Corporation or transfer agents and/or registrars designated by the Board of
Directors. Before any new certificate is issued, the old certificate shall be
surrendered for cancellation.
46. STOCKHOLDERS OF RECORD. Only stockholders of record shall be entitled to
be treated by the Corporation as the holders in fact of the shares standing in
their respective names and the Corporation shall not be bound to recognize any
equitable or other claim to or interest in any share of any other person,
whether or not it shall have express or other notice thereof, except as
expressly provided by law.
47. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may cause a new
stock certificate to be issued in place of any certificate previously issued by
the Corporation alleged to have been lost, stolen or destroyed. The Corporation
may, at its discretion and as a condition precedent to such issuance, require
the owner of such certificate to deliver an affidavit stating that such
certificate was lost, stolen or destroyed, or to give the Corporation a bond or
other security sufficient to indemnify it against any claim that may be made
against it, including any expense or liability, on account of the alleged loss,
theft or destruction or the issuance of a new certificate.
48. STOCKHOLDERS RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of and to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which shall
be not more than sixty (60) days nor less than ten (10) days before the date of
such meeting. A determination of stockholders of record entitled to notice of
and to vote at a meeting of stockholders shall apply to any adjournment of the
meeting, provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting, and shall fix a new record date for such
adjourned meeting if
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the adjourned meeting is to take place more than thirty (30) days from the date
set for the original meeting.
49. DIVIDENDS. Subject to the provisions of the Certificate of Incorporation
and the GCL, the Board of Directors may, out of funds legally available
therefor, declare dividends upon the stock of the Corporation. Before the
declaration of any dividend, the Board of Directors may set apart, out of any
funds of the Corporation available for dividends, such sum or sums as from time
to time in its discretion may be deemed proper for working capital or as a
reserve fund to meet contingencies or for such other purposes as shall be deemed
conducive to the interests of the Corporation.
AMENDMENTS
50. ADOPTION OF AMENDMENTS. The Board of Directors is authorized and empowered
from time to time in its discretion to make, alter, amend or repeal these
Bylaws, except as such power may be restricted or limited by the GCL; PROVIDED,
HOWEVER, that the provisions set forth in Sections 14, 16(a)-(d), 17, 18, 19, 20
or this Section 50 shall not be amended or repealed unless Ciba shall have
consented thereto in writing. Notwithstanding the foregoing, Sections 14,
16(b)-(d), 17, 18, 19, 20 and the proviso in the preceding sentence of this
Section 50 shall be automatically repealed and cease to have any force or effect
on the date upon which Ciba's rights under that certain Governance Agreement
dated as of February 29, 1996 between the Corporation and Ciba terminate
pursuant to the terms of such agreement.
51. RECORD OF AMENDMENTS. Whenever an amendment or new bylaw is adopted, it
shall be copied in the book to be kept for that purpose at the principal
executive office of the Corporation or at such other place as the Board of
Directors may determine. If any bylaw is repealed, the fact of repeal with the
date of the meeting at which the repeal was enacted or written consent with
respect thereto was filed shall be stated in said book.
CORPORATE SEAL
52. FORM OF SEAL. The corporate seal shall be circular in form, and shall have
inscribed thereon the name of the
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Corporation, the date of its incorporation and the word "Delaware".
MISCELLANEOUS
53. CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for payment of
money, notes, or other evidences of indebtedness, issued in the name of or
payable by or to the Corporation, shall be signed or endorsed by the Chief
Executive Officer, the President, the Chief Financial Officer, the Treasurer or
such other person or persons as may from time to time be so authorized in
accordance with a resolution of the Board of Directors.
54. CONTRACTS, ETC.; HOW EXECUTED. Except as otherwise provided in these
Bylaws, the Chairman of the Board (in his capacity as Chief Executive Officer),
the President, any Vice President or Treasurer, or such other officer or
officers as may from time to time be so authorized in accordance with a
resolution of the Board of Directors, shall have the power and authority to sign
and execute on behalf of the Corporation deeds, conveyances and contracts, and
any and all other documents requiring execution by the Corporation. The Board
of Directors may authorize any other officer or officers, or agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf
of the Corporation, and such authority may be general or confined to specific
instances.
55. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chief Executive
Officer, the President or any Vice President or the Secretary or Assistant
Secretary of the Corporation are authorized to vote, represent, and exercise on
behalf of the Corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of the Corporation. The
authority herein granted to said officers to vote or represent on behalf of the
Corporation any and all shares held by the Corporation in any other corporation
or corporations may be exercised either by such officers in person or by any
other person authorized so to do by proxy or power of attorney duly executed by
said officers.
56. INSPECTION OF BYLAWS. The Corporation shall keep in its principal office
for the transaction of business the original or a copy of these Bylaws as
amended or other-
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wise altered to date, certified by the Secretary, which shall be open to
inspection by the stockholders at all reasonable times during office hours.
57. FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
58. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise requires, the
general provisions, rules and construction, and definitions contained in the GCL
shall govern the construction of these Bylaws. Without limiting the generality
of the foregoing, the masculine gender includes the feminine and neuter, the
singular number includes the plural and the plural number includes the singular,
and the term "person" includes a corporation or other entity or organization as
well as a natural person.
59. SEVERABILITY. If any provision of these Bylaws is determined to be
invalid, void, illegal or unenforceable, the remaining provisions of these
Bylaws shall continue to be valid and enforceable and shall in no way be
affected, impaired or invalidated thereby.
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EXHIBIT 5
[FRONT]
COMMON CUSIP 428291 10 8
SHARES THIS CERTIFICATE IS TRANSFERABLE
IN THE CITY OF NEW YORK
PAR VALUE OR SAN FRANCISCO
$.01
PER SHARE
NO. SHARES
HC 49760
INCORPORATED UNDER THE LAWS HEXCEL OF THE STATE OF DELAWARE
CORPORATION
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE COMMON SHARES OF
Hexcel Corporation, transferable on the books of the Corporation in
person or by duly authorized attorney upon surrender of this certificate
properly endorsed. This certificate and the shares as represented hereby are
issued and ahall be held subject to all the provisions of the Articles of
Incorporation, as amended, of this Corporation (a copy of which is on file
with the Transfer Agent), to all of which the hodler of this certificate
assents by acceptance hereof. This certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness, the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
DATED:
/s/ RODNEY P. JENKS, JR. /s/ JOHN J. LEE
SECRETARY CHIEF EXECUTIVE OFFICER
Countersigned and Registered:
CHEMICAL TRUST COMPANY OF CALIFORNIA
TRANSFER AGENT AND REGISTRAR
By
Authorized Signature
SEE REVERSE FOR CERTAIN DEFINITIONS
AND A STATEMENT AS TO THE RIGHTS,
PREFERENCES, PRIVILEGES AND RESTRICT-
IONS ON SHARES.
<PAGE>
[REVERSE]
HEXCEL CORPORATION
1. A statement of the rights, preferences, privileges, and restrictions
granted to or imposed upon the respective classes or series of shares and upon
the holders thereof as established by the certificate of incorporation or by any
certificate of determination of preferences, and the number of shares
constituting each series and the designations thereof, is available to
stockholders, upon request and without charge, at the office of the Secretary of
the Company.
2. ARTICLE 5 OF THE CORPORATION'S CERTIFICATE OF INCORPORATION MAKES THE
FOLLOWING PROVISIONS WITH RESPECT TO PREFERRED STOCK:
The Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized to determine or alter
the rights, preferences, privileges and restrictions granted to or imposed
upon any wholly unissued series of Preferred Stock, including without
limiting the generality of the preceding clause, the authority to fix or
alter the dividend rights, dividend rate, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preference of said shares.
The Board of Directors is further authorized to determine or alter the
number of Preferred Stock constituting any such series and the designation
thereof, and to increase or decrease the number of shares of any series
subsequent to the issue of shares of that series, but not below the number
of shares of such series then outstanding. In case the number of shares of
any series shall be so decreased, the shares constituting such decrease
shall resume the status which they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
---------------------------
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - Custodian
__________________________________________________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act_______________________________________________________
(State)
UNIF TRF MIN ACT - Custodian (until age )
__________________________________________________________
(Cust)
_____________________________ under Uniform Transfers
(Minor)
to Minors Act_____________________________________________
(State)
ADDITIONAL ABBREVIATIONS MAY ALSO BE USED THOUGH NOT IN THE ABOVE LIST.
FOR VALUE RECEIVED, ______________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
/ /
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
__________________________________________________________________________Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint ____________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated_____________________________
_____________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE
CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
_______________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND
LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED MEDALLION SIGNATURE GUARANTEE PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
