<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 11, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
HEXCEL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
DELAWARE 94-1109521
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
</TABLE>
------------------------
TWO STAMFORD PLAZA
281 TRESSER BOULEVARD
STAMFORD, CONNECTICUT 06901
(Address of Principal Executive Offices)(Zip Code)
------------------------
HEXCEL CORPORATION 1997 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
------------------------
IRA J. KRAKOWER, ESQ.
HEXCEL CORPORATION
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
TWO STAMFORD PLAZA
281 TRESSER BOULEVARD
STAMFORD, CONNECTICUT 06901
(203) 969-0666
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
------------------------
COPIES TO:
JOSEPH A. COCO, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735-3000
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1)(3) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per
share.............................. 200,000 shares $15.94 $3,187,500 965.91
</TABLE>
(1) This registration statement (this "Registration Statement") covers shares of
Common Stock of Hexcel Corporation (the "Registrant" or the "Corporation")
which may be offered or sold from time to time pursuant to the Registrant's
1997 Employee Stock Purchase Plan (the "Plan").
(2) Estimated solely for the purpose of calculating the registration fee. The
aggregate offering price has been computed pursuant to Rules 457(c) and
457(h) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), on the basis of the average of the high and low sale
prices of the Registrant's Common Stock as reported on the New York Stock
Exchange Composite Tape on July 7th, 1997, within five business days prior
to filing. Common Stock will be issued under the Plan at eighty-five percent
(85%) of the average of such sale prices.
(3) Pursuant to Rule 416, this Registration Statement also covers such
indeterminable number of additional shares of the Registrant's Common Stock
as may be issuable pursuant to the antidilution provisions of the Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the Registrant with the
Securities and Exchange Commission (the "Commission"), are incorporated by
reference in this Registration Statement as of their respective dates:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997.
(c) The Registrant's Current Report on Form 8-K dated April 29, 1997.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A relating to the Common
Stock, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities registered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Set forth below is a description of certain provisions of the General
Corporation Law of the State of Delaware (the "GCL"), the Certificate of
Incorporation of the Registrant, the By-laws of the Registrant, the Strategic
Alliance Agreement dated as of September 29, 1995 and amended as of December 12,
1995,
II-1
<PAGE>
among Ciba-Geigy Limited, Ciba-Geigy Corporation and the Registrant (the
"Strategic Alliance Agreement"), and the Plan, as such provisions relate to the
indemnification of the directors and officers of the Registrant. This
description is intended only as a summary and is qualified in its entirety by
reference to the applicable provisions of the GCL, the Certificate of
Incorporation of the Registrant, the By-laws of the Registrant, the Strategic
Alliance Agreement and the Plan, which are incorporated herein by reference.
The Registrant is a Delaware corporation. Section 145 of the GCL provides
that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at its request in such capacity at another
corporation or business organization, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interest of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
that such person's conduct was unlawful. A Delaware corporation may indemnify
officers and directors in an action by or in the right of the corporation under
the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify against the expenses that such officer or director actually and
reasonably incurred.
Section 102(b)(7) of the GCL permits a corporation to provide in its
certificate of incorporation that a director of a corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the GCL
(Liability of Directors for Unlawful Payment of Dividend or Unlawful Stock
Purchase or Redemption) or (iv) for any transaction from which the director
derived an improper personal benefit.
The Registrant's Certificate of Incorporation provides for the elimination
of personal liability of a director for breach of fiduciary duty, to the full
extent permitted by the GCL. The Registrant's Certificate of Incorporation also
provides that the Registrant shall indemnify its directors and officers to the
full extent permitted by the GCL; PROVIDED, HOWEVER, that the Registrant shall
indemnify any such person seeking indemnification in connection with a
proceeding initiated by such person only if such proceeding was authorized by
the Board of Directors of the Registrant.
The Strategic Alliance Agreement provides that the Registrant's Certificate
of Incorporation and By-laws will continue to contain the provisions with
respect to indemnification of directors and officers as of the date of the
Strategic Alliance Agreement, whose provisions will not be amended, repealed or
otherwise modified, for a period of six years following the Closing contemplated
by the Strategic Alliance Agreement (the "Closing") in any manner that would
adversely affect the rights of individuals who at any time prior to the Closing
were directors or officers of the Registrant in respect of actions or omissions
occurring at or prior to the Closing, except for such modifications as are
required by applicable law. In addition, the Strategic Alliance Agreement
generally requires the Registrant to indemnify its officers and directors as of
the date of the Strategic Alliance Agreement against all losses (including
reasonable fees and expenses of counsel) arising out of any claim based in whole
or in part on the fact that such person was a director or officer of the
Registrant at or prior to the Closing.
The Registrant maintains, at its expense, an insurance policy which insures
the directors and officers of the Registrant, subject to certain exclusions and
deductions, against certain liabilities that they may incur in their capacity as
such. The Strategic Alliance Agreement provides that for six years after the
II-2
<PAGE>
Closing, the Registrant is generally required to provide directors' and
officers' liability insurance for its officers and directors as of the date of
the Strategic Alliance Agreement.
Pursuant to the Plan, no member of the "Committee" (as defined therein)
shall be liable for any action or determination made in good faith, and the
members of such Committee shall be entitled to indemnification in the manner
provided in the Registrant's Certificate of Incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<C> <S>
4.1 Restated Certificate of Incorporation of the Registrant dated June 3, 1996
(filed as Exhibit 1 to the Registrant's Registration Statement on Form 8-A
dated July 9, 1996 and incorporated herein by reference).
4.2 Amended and Restated By-laws of the Registrant dated May 23, 1996 (filed as
Exhibit 2 to the Registrant's Registration Statement on Form 8-A dated July 9,
1996 and incorporated herein by reference).
4.3 Hexcel Corporation 1997 Employee Stock Purchase Plan.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding legality of
Common Stock covered by this Registration Statement.
23.1 Consent of independent auditors.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this Registration
Statement).
99.1 Strategic Alliance Agreement dated as of September 29, 1995 among Hexcel
Corporation, Ciba-Geigy Limited and Ciba-Geigy Corporation (incorporated
herein by reference to Exhibit 10.F to the Registrant's current report on Form
8-K dated as of October 13, 1995).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of the securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed by the Registrant pursuant
to Rule 424(b) under the Securities Act if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the
II-3
<PAGE>
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the undersigned Registrant
of expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Stamford, State of Connecticut, on the 10th day of July, 1997.
HEXCEL CORPORATION
(Registrant)
By: /s/ IRA J. KRAKOWER
-----------------------------------------
Ira J. Krakower
Senior Vice President, General Counsel
and Secretary
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ira J. Krakower, his attorney-in-fact,
with the power of substitution, for him in any and all capacities, to sign any
amendments to this registration statement (including post-effective amendments),
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in all capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ --------------------------- -------------------
<C> <S> <C>
/s/ JOHN J. LEE President; Chief Executive
------------------------------------------- Officer; Chairman of the July 10, 1997
John J. Lee Board of Directors
Senior Vice President,
/s/ STEPHAN C. FORSYTH Finance and
------------------------------------------- Administration; July 10, 1997
Stephan C. Forsyth Chief Financial Officer
/s/ WAYNE C. PENSKY Corporate Controller and
------------------------------------------- Principal July 10, 1997
Wayne C. Pensky Accounting Officer
/s/ JOHN M.D. CHEESEMOND Director
------------------------------------------- July 10, 1997
John M.D. Cheesemond
/s/ MARSHALL S. GELLER Director
------------------------------------------- July 10, 1997
Marshall S. Geller
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ --------------------------- -------------------
<C> <S> <C>
/s/ JUERGEN HABERMEIER Vice Chairman; Director
------------------------------------------- July 10, 1997
Juergen Habermeier
/s/ STANLEY SHERMAN Director
------------------------------------------- July 10, 1997
Stanley Sherman
------------------------------------------- Director
Martin L. Solomon July 10, 1997
/s/ GEORGE S. SPRINGER Director
------------------------------------------- July 10, 1997
George S. Springer
/s/ JOSEPH T. SULLIVAN Director
------------------------------------------- July 10, 1997
Joseph T. Sullivan
------------------------------------------- Director
Hermann Vodicka July 10, 1997
/s/ FRANKLIN S. WIMER Director
------------------------------------------- July 10, 1997
Franklin S. Wimer
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
- -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant dated June 3, 1996 (filed as Exhibit 1 to the
Registrant's Registration Statement on Form 8-A dated July 9, 1996 and incorporated herein by reference).
4.2 Amended and Restated By-laws of the Registrant dated May 23, 1996 (filed as Exhibit 2 to the Registrant's
Registration Statement on Form 8-A dated July 9, 1996 and incorporated herein by reference).
4.3 Hexcel Corporation 1997 Employee Stock Purchase Plan.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding legality of Common Stock covered by this
Registration Statement.
23.1 Consent of independent auditors.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this Registration Statement).
99.1 Strategic Alliance Agreement dated as of September 29, 1995 among Hexcel Corporation, Ciba-Geigy Limited
and Ciba-Geigy Corporation (incorporated herein by reference to Exhibit 10.F to the Registrant's current
report on Form 8-K dated as of October 13, 1995).
</TABLE>
<PAGE>
EXHIBIT 4.3
HEXCEL CORPORATION
1997 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The Plan is intended to provide Employees (as defined herein) of
the Company and its Designated Subsidiaries, with the opportunity to apply a
portion of their compensation to the purchase of Common Stock of the Company in
accordance with the terms of the Plan, to promote and increase the ownership of
Common Stock by such employees and to better align the interests of the
Company's employees and its stockholders and to thereby increase overall
stockholder value.
2. DEFINITIONS.
(a) "Board" means the Board of Directors of the Company.
(b) "Brokerage Firm" means any brokerage firm selected by the Company, from
time to time, to establish Investment Accounts for the Participants under the
Plan.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a committee formed or designated by the Board to
administer the Plan.
(e) "Common Stock" means the Common Stock, $0.01 par value, of the Company.
(f) "Company" means Hexcel Corporation, a Delaware corporation.
(g) "Compensation" means all cash compensation, to include regular straight
time gross earnings, overtime, shift premium, cash bonuses and commissions.
(h) "Continuous Status as an Employee" means the absence of any interruption
or termination of service as an Employee other than ordinary vacation and
short-term disability absences. Continuous Status as an Employee shall not be
considered interrupted in the case of a leave of absence agreed to in writing by
the Company, provided that such leave is for a period of not more than 90 days
or reemployment upon the expiration of such leave is guaranteed by contract or
statute.
(i) "Contributions" means all amounts credited to the Plan Account of a
Participant pursuant to the Plan.
(j) "Designated Subsidiaries" means the Subsidiaries, which have been
designated by the Committee from time to time in its sole discretion as eligible
to participate in the Plan.
(k) "Employee" means any person, excluding any officer or director or other
person or group of persons excluded from the Plan as provided herein, who is a
direct employee and on the payroll of the Company or one of its Designated
Subsidiaries and who is employed for at least thirty (30) hours per week and
more than 1,000 hours in a calendar year by the Company or one of its Designated
Subsidiaries. The term Employee specifically excludes any person or group of
persons who is classified by the Company or its Designated Subsidiary as a
temporary employee, contract employee, reserve employee or similar non-direct or
temporary designation. It is the intention of the Company that the definition of
Employee in this Plan (as applied by the Committee in its sole discretion) shall
be determinative for purposes of participation in the Plan, regardless of how a
person may be characterized by the Company or its Designated Subsidiary for any
other purpose.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(m) "Exercise Date" means the last day of each Offering Period of the Plan.
(n) "Investment Account" means an Employee Stock Purchase Plan account at
the Brokerage Firm, that is established for each Participant and in which all
shares of Common Stock purchased by the Participant pursuant to the Plan are
held.
<PAGE>
(o) "Offering Date" means the first business day of each Offering Period of
the Plan.
(p) "Offering Period" means a period of three (3) calendar months.
(q) "Participant" means any Employee who is eligible to participate in the
Plan who has delivered a Subscription Agreement to the Company, whose employment
has not terminated and who has not delivered to the Company a Participation
Termination Notice.
(r) "Participation Termination Notice" has the meaning given thereto in
Section 10 hereof.
(s) "Plan" means this Employee Stock Purchase Plan.
(t) "Plan Account" means, with respect to each Participant, an account
established by the Company to record Contributions to the Plan made by such
Participant and the use of such Contributions as they are either (i) applied by
the Company for the purchase of Common Stock under the Plan for the account of
such Participant or (ii) repaid to such Participant pursuant to the Plan.
(u) "Subsidiary" shall mean a corporation, domestic or foreign, of which
more than 50% of the voting shares are held by the Company or a Subsidiary,
whether or not such corporation now exists or is hereafter organized or acquired
by the Company or a Subsidiary.
3. ELIGIBILITY. Any person who has been continuously employed as an Employee
for six (6) months as of the Offering Date of a given Offering Period and has
reached the age of majority in the state of his or her residence shall be
eligible to participate in such Offering Period under the Plan, subject to the
requirements of Section 5(a).
4. OFFERING PERIODS. The Plan shall be implemented by a series of Offering
Periods, with a new Offering Period commencing on January 1 of each year (or at
such other time or times as may be determined by the Committee), and subsequent
Offering Periods will commence on the first day of each calendar quarter (i.e.,
April 1, July 1, October 1). The Plan shall continue until terminated in
accordance with Section 22 hereof. The Committee shall have the power to change
the duration and/or the frequency of Offering Periods with respect to future
offerings if such change is announced at least fifteen (15) calendar days prior
to the scheduled beginning of the first Offering period to be affected.
5. PARTICIPATION.
(a) An Employee who is eligible to participate in the Plan pursuant to
Section 3 hereof may become a participant in the Plan by completing a
subscription agreement in the form provided by the Company (a "Subscription
Agreement") and filing it with the appropriate representative of the Company or
the Designated Subsidiary that employs such Employee in accordance with the
terms of the Subscription Agreement at any time during the initial Offering
Period of the Plan or, for subsequent Offering Periods, not later than fifteen
(15) calendar days prior to any Offering Date, unless a later time for filing
Subscription Agreements is established by the Committee for all eligible
Employees with respect to a given Offering Period. Each eligible Employee's
Subscription Agreement shall set forth either (1) the whole percentage of the
Participant's Compensation (which shall be not less than 1% and not more than
10%) or (2) the whole dollar amount (that shall not be less than $5.00 and not
more than an amount equal to 10%, of such Participant's Compensation) to be
deducted by the Company from the Participant's Compensation as Contributions to
the Plan. Each Subscription Agreement shall constitute the Employee's (i)
election to participate in the Plan for all subsequent Offering Periods until
such time as (1) the Company has received notice of termination of participation
from such Employee pursuant to Section 10, (2) a new Subscription Agreement
designating a different level of participation is delivered to the Company by
such Employee or (3) such Employee's termination of employment, and (ii)
authorization for the Company to withhold (in the manner determined by the
Company or the applicable Subsidiary) any taxes that are required to be withheld
by the Company or the applicable Subsidiary due to the Employee's participation
in the Plan or the exercise of any Option or purchase of any Common Stock under
the Plan.
2
<PAGE>
(b) Payroll deductions with respect to each Participant shall commence on
the first payday following the first Offering Date following the Company's
receipt of the applicable Subscription Agreement and shall end on the last
payday on or prior to the termination of such Employee's employment with the
Company, unless sooner terminated by the Participant as provided in Section 10,
provided that, payroll deductions will begin on the first pay period commencing
after the delivery of a Subscription Agreement for Participants who join the
Plan during the initial Offering Period. To the extent that the Participant
elects to have a percentage of his or her compensation deducted, payroll
deductions shall automatically be increased or decreased to reflect changes in
Compensation during such Offering Period, but a Participant shall not otherwise
be entitled to increase or decrease his or her contribution rate during an
Offering Period.
6. METHOD OF PAYMENT OF CONTRIBUTIONS.
(a) The Participant shall elect to have payroll deductions made on each
payday during the Offering Period either (1) in a whole percentage amount of
between one percent (1%) and not more than ten percent (10%) of such
Participant's Compensation on each such payday or (2) in a whole dollar amount
(that shall be not less than $5.00 and not more than an amount equal to 10% of
such Participant's Compensation) of such Participant's Compensation on each such
payday, provided that the aggregate of such payroll deductions during the
Offering Period shall not exceed ten percent (10%) of the Participant's
aggregate Compensation during said Offering Period. All payroll deductions made
with respect to a Participant shall be credited to his or her Plan Account. A
Participant may not make any additional payments into his or her Plan Account or
Investment Account.
(b) A Participant may discontinue his or her participation in the Plan as
provided in Section 10. A Participant may increase or decrease the rate of his
or her Contributions for future Offering Periods by completing and filing with
the Company a new Subscription Agreement no later than fifteen (15) calendar
days prior to the beginning of the Offering Period for which such change will
become effective. Subject to the prior sentence, the change in rate shall be
effective as of the first pay period ending in the first new Offering Period
following the date of filing of the new Subscription Agreement.
7. GRANT OF OPTION. On the Offering Date of each Offering Period, each
eligible Employee participating in such Offering Period shall be granted an
option to purchase on the Exercise Date during such Offering Period a number of
shares of Common Stock determined by dividing such Employee's Contributions
accumulated during such Offering Period prior to such Exercise Date and retained
in the Participant's Plan Account as of the Exercise Date by eighty-five percent
(85%) of the closing price of the Common Stock as determined from the New York
Stock Exchange Consolidated Transaction Tape on the Exercise Date or, if there
were no sales of Common Stock on such date, on the next preceding date on which
such closing price was recorded.
8. EXERCISE OF OPTION. Unless a Participant withdraws from the Plan as
provided in Section 10, each Participant's option for the purchase of shares for
a particular Offering Period will be exercised automatically on the Exercise
Date of such Offering Period, and the maximum number of whole and fractional
shares subject to option will be purchased for the Participant at the price
described in Section 7 with the Contributions which were made to the
Participant's Plan Account during such Offering Period. The shares of Common
Stock purchased upon exercise of an option hereunder shall be deemed to be
transferred to the Participant on the Exercise Date. A Participant's option to
purchase shares of Common Stock hereunder will be exercised only during the
Participant's lifetime.
9. DELIVERY. As promptly as reasonably practicable following each Exercise
Date, the Company shall cause the shares purchased by each Participant to be
credited to such Participant's Investment Account. The Company will deliver to
the Brokerage Firm or its nominee a stock certificate or other evidence
representing all of the full and fractional shares that are to be allocated to
the Participant's Investment Accounts, rounded up to the nearest full share (and
taking into account any excess shares or fractional shares which are then held
by the Brokerage Firm from prior deliveries). Notwithstanding the prior
3
<PAGE>
sentence, in lieu of rounding the number of shares up to the nearest full share,
the Company may round down to the nearest full share and pay to the Brokerage
Firm an amount in cash equal to the value of the fractional share that would
otherwise be delivered. Upon termination of the plan, the Brokerage Firm will
redeliver to the Company all shares (including fractional shares) of Common
Stock that are not allocated to Investment Accounts.
10. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A Participant may withdraw all but not less than all the Contributions
credited to his or her Plan Account, which have not been applied to the purchase
of Common Stock, prior to the Exercise Date of the Offering Period, by giving
written notice to the Company (a "Participation Termination Notice") not less
than ten (10) calendar days prior to the Exercise Date of such Offering Period.
Any Participation Termination Notice delivered subsequent to the tenth calendar
day prior to any Exercise Date shall not be effective during the Offering Period
during which it was delivered, but will be effective as of the first day of the
immediately succeeding Offering Period. Upon the effectiveness of an Employee's
Participation Termination Notice, all of the Participant's Contributions
credited to his or her Plan Account, which have not been applied to the Purchase
of Common Stock, and any taxes that the Company or a Designated Subsidiary
withheld in connection therewith, will be paid promptly to the Participant,
without interest, and his or her outstanding option will automatically
terminate. An Employee who terminates his or her participation in the Plan will
not be again eligible to participate in the Plan until the commencement of the
first Offering Period following the expiration of the Offering Period during
which the Participant's Participation Termination Notice becomes effective.
(b) Upon termination of a Participant's Continuous Status as an Employee
prior to the Exercise Date of the then current Offering Period for any reason,
including retirement or death, the Contributions credited to his or her Plan
Account, together with all taxes that the Company or a Designated Subsidiary has
withheld in connection therewith, will be returned to him or her or, in the case
of his or her death, to the person or persons entitled thereto under Section 14,
without interest, and his or her outstanding option and future participation in
the Plan will automatically terminate.
(c) Other than as set forth in Section 10(a), a Participant's withdrawal
from the Plan, whether voluntary or involuntary, will not affect his or her
eligibility to participate in the Plan in the future should he or she again
qualify for participation or in any similar plan which may hereafter be adopted
by the Company.
11. INTEREST. No interest shall accrue on the Contributions of a Participant
in the plan or any taxes withheld in connection therewith.
12. STOCK.
(a) The maximum number of shares of Common Stock which shall be made
available for sale under the Plan shall be 200,000 shares or such other number
of shares as may, from time to time, be determined in the sole discretion of the
Board, subject, however, to adjustment upon changes in capitalization of the
Company as provided in Section 18. Such shares shall be reserved from the
Company's authorized but unissued shares and/or treasury shares that are not
otherwise reserved for issuance under any other plan or with respect to any
convertible security. If the total number of shares which would otherwise be
subject to options granted pursuant to Section 7 hereof on the Offering Date of
an Offering Period exceeds the number of shares then available under the Plan
(after deduction of all shares for which options have been exercised or are then
outstanding), the Committee shall make a pro rata allocation of the shares
remaining available for option grants in as uniform a manner as shall be
practicable and as it shall determine to be equitable. Any amounts remaining in
a Participant's Plan Account not applied to the purchase of Common Stock
pursuant to this Section 12 shall be refunded on or promptly after the
applicable Exercise Date. In such event, the Company shall give written notice
of such reduction of the number of shares subject to the option to each Employee
affected thereby and shall cease future withholdings and Contributions under the
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Plan. Only the number of shares that are issued pursuant to exercised options
shall reduce the number of shares available under the Plan. Shares that become
subject to options which are later terminated shall again be available under the
Plan.
(b) Participants will have no interest (including any interest in any
ordinary or special dividends) or voting right in shares of Common Stock that
are subject to any option until such option has been exercised.
(c) Upon the written request of the Employee delivered to the Brokerage
Firm, the Brokerage Firm will (i) have a share certificate issued for any number
of whole shares held in the Employees Investment Account as of the date of such
notice and, (ii) if the Employee is no longer participating in the Plan, pay to
the Employee in cash an amount equal to the value of any fractional shares held
in the Employee's Investment Account as of the date of such notice. Upon
termination of an Employee's employment with the Company for any reason, the
Company will (i) cause the Brokerage Firm to have a share certificate issued for
the full number of whole shares held in the Employee's Investment Account as of
the date of such termination, and (ii) pay to the Employee in cash an amount
equal to the value of any fractional shares held in the Employee's Investment
Account as of the date of such termination. All amounts to be paid to an
Employee pursuant to this Section 12(c) with respect to fractional shares shall
be determined by reference to the closing price of the Common Stock determined
from the New York Stock Exchange Consolidated Transaction Tape on the date of
the Employee's notice to the Company or termination, as applicable, or, if there
were no sales of the Common Stock on such date, on the next preceding day on
which such closing price was recorded. With respect to the certification and
delivery to the Employee of the shares held in the Employee's Investment
Account, the Company shall pay the fee charged by the Brokeage Firm for such
service for the issuance of not more than four certificates per Participant in
any calendar year.
13. ADMINISTRATION.
(a) Except as otherwise determined by the Board, the Committee shall
administer the Plan. The Committee shall have the authority in its discretion,
subject to and not inconsistent with the express provisions of the Plan and the
determinations of the Board, to administer the Plan and to exercise all powers
and authorities either specifically granted to it under the Plan or necessary or
advisable in the administration of the Plan, including, without limitation, the
authority to determine, from time to time, eligible Employees; to interpret and
construe the Plan and the provisions of the Subscription Agreements; to
prescribe, amend and rescind rules and regulations relating to the Plan; to
determine the terms and provisions of the Subscription Agreements (which need
not be identical) and to cancel or suspend the participation of any Employee or
group of Employees, and to make all other determinations deemed necessary or
advisable for the administration of the Plan. The Committee or the Board may
make any modification or amendment to the Plan that it deems necessary or
advisable in order to implement the Plan in a manner consistent with any law or
regulation applicable to the Company or any Designated Subsidiary. The Committee
shall inform all Participants and Employees eligible to participate in the Plan,
who would be affected thereby, of any such modification or amendment.
(b) The Board shall fill all vacancies, however caused, in the Committee.
The Board may from time to time appoint additional members to the Committee, and
may at any time remove one or more Committee members and substitute others. The
Committee may appoint a chairperson and a secretary and make such rules and
regulations for the conduct of its business as it shall deem advisable, and
shall keep minutes of its meetings. The Committee shall hold its meetings at
such times and places (and its telephonic meetings at such times) as it shall
deem advisable. The Committee may delegate to one or more of its members or to
one or more agents such administrative duties as it may deem advisable, and the
Committee or any person to whom it has delegated duties as aforesaid may employ
one or more persons to render advice with respect to any responsibility the
Committee or such person may have under the Plan. Except to the extent otherwise
determined by the Board, all decisions, determinations and interpretations of
the Committee
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shall be final and binding on all persons, including, without limitation, the
Company, the Participants (or any person claiming any rights under the Plan from
or through any Participant) and any stockholder.
(c) No member of the Board or of the Committee shall be liable for any
action or determination made in good faith, and the members of the Board or of
the Committee shall be entitled to indemnification and reimbursement in the
manner provided in the Company's Certificate of Incorporation, as it may be
amended from time to time.
14. DESIGNATION OF BENEFICIARY.
(a) A Participant may file a written designation of a beneficiary who is to
receive any shares of Common Stock and cash, if any, from the Participant's Plan
Account or Investment Account in the event of such Participant's death by
delivering notice of such beneficiary to the Company. If a Participant is
married and the designated beneficiary is not the spouse, spousal consent shall
be required for such designation to be effective.
(b) The Participant (subject to spousal consent) may change such designation
of beneficiary at any time by written notice delivered to the Company. In the
event of the death of a Participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such Participant's death,
the Company shall deliver such shares and/or cash to the executor or
administrator of the estate of the Participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company), the Company,
in its discretion, may deliver such shares and/or cash to the spouse or to any
one or more dependents or relatives of the Participant, or if no spouse,
dependent or relative is known to the Company, then to such other person as the
Company may designate or as may be required by law.
15. TRANSFERABILITY. Neither Contributions credited to a Participant's Plan
Account nor any rights with regard to the exercise of an option or to receive
shares under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way (other than by will, the laws of descent and distribution
or as provided in Section 14 hereof) by the Participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds in
accordance with Section 10. No Contribution made under this Plan or amount
representing a Participant's Plan Account balance shall be subject to execution,
attachment or process.
16. USE OF FUNDS. The Participants' rights with respect to Contributions
made to the Plan and the balances, from time to time, in their respective Plan
Accounts shall be those of general creditors of the Company or of the applicable
Designated Subsidiary. All Contributions received or held by the Company or a
Designated Subsidiary under the Plan may be used for any corporate purpose, and
the Company or Designated Subsidiary, as applicable, shall not be obligated to
segregate such Contributions.
17. REPORTS AND FEES OF INVESTMENT ACCOUNTS. Individual Investment Accounts
will be maintained for each Participant. Statements of account will be given to
Participants promptly following each Exercise Date, which statements will set
forth the total amount of Contributions to the Plan Account during the most
recently completed Offering Period, the per share purchase price and the number
of shares purchased on the most recent Exercise Date, and the total number of
shares and fractional shares held in such Participant's Investment Account. The
Company shall pay the annual and any extraordinary maintenance fees for each
Investment Account and the certification fees referenced in Section 12 above.
The Participant will be responsible for paying all transaction fees and any
certification fee not paid by the Company pursuant to Section 12 hereof.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
(a) The number of shares of Common Stock covered by each unexercised option
under the Plan and the number of shares of Common Stock which have been
authorized for issuance under the Plan but which have not yet been issued and
are not subject of an unexercised option (collectively, the "Reserves"), as well
as the price per share of Common Stock covered by each option under the Plan for
which the exercise
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price has been determined but which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of shares of Common Stock effected without
receipt of consideration by the Company; provided, however, that conversion of
any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration". Such adjustments shall be made by
the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an option.
(b) In the event of the proposed dissolution or liquidation of the Company,
the then current Offering Period will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the
Committee. In the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into another
corporation, each option under the Plan shall be assumed or an equivalent option
shall be substituted by such successor corporation or a parent or subsidiary of
such successor corporation, unless the Committee determines, in the exercise of
its sole discretion and in lieu of such assumption or substitution, to shorten
the Offering Period then in progress by setting a new Exercise Date (the "New
Exercise Date"). If the Committee shortens the Offering Period then in progress
in lieu of assumption or substitution in the event of a merger or sale of
assets, the Committee shall notify each participant in writing, at least ten
(10) days prior to the New Exercise Date, that the Exercise Date for his or her
option has been changed to the New Exercise Date and that his or her option will
be exercised automatically on the New Exercise Date, unless prior to such date
he or she has withdrawn from the Offering Period as provided in Section 10. For
purposes of this Section, an option granted under the Plan shall be deemed to be
assumed if, following the sale of assets or merger, the option confers the right
to purchase, for each share of Common Stock subject to the option immediately
prior to the sale of assets or merger, the consideration (whether stock, cash or
other securities or property) received in the sale of assets or merger by
holders of Common Stock for each share of Common Stock held on the effective
date of the transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares of Common Stock).
(c) The Committee may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the price
per share of Common Stock covered by each outstanding option, in the event that
the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of shares of its outstanding Common
Stock, and in the event of the Company being consolidated with or merged into
any other corporation.
19. AMENDMENT OR TERMINATION. The Board may at any time terminate or amend
the Plan. Except as provided in Section 18, no such termination may affect
options previously granted, nor may an amendment make any change in any option
theretofore granted which adversely affects the rights of any participant.
20. NOTICES. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
21. CONDITIONS UPON ISSUANCE OF SHARES
(a) Shares shall not be issued with respect to an option unless the exercise
of such option and the issuance and delivery of such shares pursuant thereto
shall comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended (the
"Securities Act"), the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
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(b) As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law. If the issuance of any shares of
Common Stock pursuant to the Plan is not so registered under the Securities Act,
certificates for such shares shall bear a legend reciting the fact that such
shares may only be transferred pursuant to an effective registration statement
under the Securities Act or an opinion of counsel to the Company that such
registration is not required. The Company may also issue "stop transfer"
instructions with respect to such shares while they are subject to such
restrictions.
(c) The Company shall use its best efforts to have the shares issued under
the Plan listed on each securities exchange on which the Common Stock is then
listed as promptly as possible. The Company shall not be obligated to issue or
sell any shares under the Plan until they have been listed on each securities
exchange on which the Common Stock is then listed.
(d) The Company will promptly file with the Securities and Exchange
Commission a registration statement on Form S-8 covering the issuance of the
shares of Common Stock pursuant to this Plan, cause such registration statement
to become effective, and keep such registration statement effective for the
period that this Plan is in effect.
22. TERM OF PLAN. The Plan became effective upon its adoption by the Board
on May 22, 1997 and shall continue in effect until the earliest to occur of (i)
purchase of all shares of Common Stock subject to the Plan, (ii) May 22, 2007,
and (iii) the date the Plan is terminated pursuant to Section 19.
23. GOVERNING LAW. To the extent that federal laws do not otherwise control,
the Plan shall be construed in accordance with and governed by the laws of the
State of Delaware.
24. SAVINGS CLAUSE. This Plan is intended to comply in all aspects with
applicable laws and regulations. In case any one or more of the provisions of
this Plan shall be held invalid, illegal or unenforceable in any respect under
applicable law and regulations, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby and
the invalid, illegal or unenforceable provisions shall be deemed null and void;
however, to the extent permissible by law, any provision which could be deemed
null and void shall first be construed, interpreted or revised retroactively to
permit this Plan to be construed in compliance with all applicable laws so as to
foster the intent of this Plan.
* * * * * *
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SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
July 11, 1997
Hexcel Corporation
Two Stamford Plaza
281 Tresser Boulevard
Stamford, Connecticut 06901
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Hexcel Corporation, a Delaware
corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-8 (the "Registration Statement"), relating to
the issuance and sale of up to 200,000 shares (the "Shares") of the common
stock, par value $0.01 per share (the "Common Stock"), of the Company issuable
upon exercise of options that may be granted under the Company's 1997 Employee
Stock Purchase Plan (the "Stock Purchase Plan").
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Act").
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of (i) the Registration Statement, (ii) the Stock Purchase
Plan, (iii) a specimen certificate evidencing the Common Stock, (iv) the
Restated Certificate of Incorporation of the Company, as amended to date, (v)
the Amended and Restated By-Laws of the Company, as amended to date, (vi)
certain resolutions of the Board of Directors of the Company relating to, among
other things, the Stock Purchase Plan and (vii) such other documents as we have
deemed necessary or appropriate as a basis for the opinions set forth below.
In our examinations, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof on such
parties. As to any facts material to the opinions expressed herein which we did
not independently establish or verify, we have relied upon certificates,
statements or representations of officers and other representatives of the
Company, public officials and others. In rendering the opinion set forth below,
we have assumed that (i) the certificates representing the Shares will be
manually signed by one of the authorized officers of the transfer agent and
registrar for the Common Stock and registered by such transfer agent and
registrar and will conform to the specimen thereof examined by us and (ii) prior
to the issuance of any Shares, the Company and the relevant optionee will have
duly entered into subscription agreements ("Subscription Agreements") in
accordance with the terms of the Stock Purchase Plan.
Members of our firm are admitted to the Bar of the State of New York, and we
do not express any opinion as to the laws of any jurisdiction other than the
General Corporation Law of the State of Delaware.
<PAGE>
Hexcel Corporation
July 11, 1997
Page 2
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized for issuance and, when delivered
and paid for in accordance with the terms of the Stock Purchase Plan and the
Subscription Agreements, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission (the "Commission") as Exhibit 5.1 to the Registration
Statement. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933 or the rules or regulations of the Commission thereunder.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Hexcel Corporation on Form S-8 of our report dated February 28, 1997,
appearing in the Annual Report on Form 10-K of Hexcel Corporation for the year
ended December 31, 1996.
DELOITTE & TOUCHE LLP
Oakland, California
July 10, 1997
