AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 26, 1999
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)
DELAWARE 94-1109521
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
----------------------------
TWO STAMFORD PLAZA
281 TRESSER BOULEVARD
STAMFORD, CONNECTICUT 06901
(Address of Principal Executive Offices) (Zip Code)
-----------------------
HEXCEL CORPORATION INCENTIVE STOCK PLAN
(Full Title of the Plan)
-----------------------
IRA J. KRAKOWER, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
HEXCEL CORPORATION
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:
WAYNE PENSKY
VICE PRESIDENT AND CHIEF ACCOUNTING OFFICER
HEXCEL CORPORATION
5794 WEST LAS POSITAS BLVD.
PLEASANTON, CALIFORNIA 94588
(925) 847-9500
-----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================
Title of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Offering Registration
Registered Registered (1) Per Share(2) Price(2) Fee
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 700,000 $8.84 $6,188,000 $1720.26
value $0.01 per
share
==========================================================================================
</TABLE>
(1) This registration statement (this "Registration Statement") covers
additional shares of Common Stock of Hexcel Corporation (the
"Registrant") which may be offered or sold from time to time pursuant
to the Hexcel Corporation Incentive Stock Plan (as amended, the
"Plan"). By virtue of an amendment to the Plan, the number of shares
issuable thereunder was increased by 700,000. 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.
(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 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 22, 1999, within five business days
prior to filing.
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 Registrant has previously registered 3,850,000 shares of
its Common Stock, $0.01 par value, issuable under the Hexcel Corporation
Incentive Stock Plan (as amended, the "Plan"). This Registration Statement
is being filed pursuant to General Instruction E to Form S-8 to register an
additional 700,000 shares issuable under the Plan. The Registrant hereby
incorporates by reference Registrant's previous Form S-8 Registration
Statement (File No. 333-36163) relating to the Plan, as filed with the
Securities and Exchange Commission (the "Commission") on September 23,
1997.
The following documents, which have been filed by the
Registrant with the Commission, are also 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, 1998.
(b) The Registrant's Proxy Statement dated April 12, 1999 relating
to the Registrant's Annual Meeting of Stockholders held on May
20, 1999.
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1999.
(d) The Registrant's Current Report on Form 8-K dated January 5,
1999, relating to the proposed issuance of $275 million of
senior subordinated notes due 2009 pursuant to Rule144A.
(e) The Registrant's Current Report on Form 8-K dated January 25,
1999, relating to the Company's fourth quarter and full-year
1998 financial results.
(f) The Registrant's Current Report on Form 8-K dated March 17,
1999, relating to the closure of the Company's Cleveland,
Georgia facility.
(g) The Registrant's Current Report on Form 8-K dated March 29,
1999, relating to the Company's first quarter 1999 outlook.
(h) The Registrant's Current Report on Form 8-K dated April 30,
1999, relating to the Company's pro forma and actual business
segment data and net sales to third-party customers by product
group.
(i) The Registrant's Current Report on Form 8-K dated June 25, 1999
relating to the commencement by the Company of its offer to
exchange any and all of its outstanding 9 3/4% Senior
Subordinated Notes due 2009 which were sold under Rule 144A.
(j) The Registrant's Current Report on Form 8-K dated July 6, 1999
relating to the Company's estimated second quarter earnings.
(k) The Registrant's Current Report on Form 8-K dated July 21, 1999
relating to the Company's second quarter results and the
completion of the exchange offer for its 9 3/4% Senior
Subordinated Notes due 2009.
(l) 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, Strategic Alliance Agreement dated as of September 29, 1995 and
amended as of December 12, 1995, among Ciba-Geigy Limited, Ciba-Geigy
Corporation and the Registrant (the "Strategic Alliance Agreement"), and
the Hexcel Corporation Incentive Stock 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 Bylaws 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, which 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 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.
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 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, Registration
No. 1-08472 and incorporated herein by reference).
4.3 Hexcel Corporation Incentive Stock Plan, as amended and
restated on January 30, 1997 and further amended on
December 10, 1997 and March 25, 1999.
5.1 Opinion of Ira J. Krakower, General Counsel of Hexcel
Corporation, regarding legality of Common Stock covered
by this Registration Statement.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Ira J. Krakower (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
99.1 Registration Statement on Form S-8, Registration No.
333-36163, relating to the Hexcel Corporation Incentive
Stock Plan (incorporated herein by reference to
Registrant's Form S-8 Registration Statement, File No.
333-36163, dated September 23, 1997).
99.2 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).
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 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 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.
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 22nd day of July, 1999.
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.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ John J. Lee Chief Executive Officer; July 22, 1999
- -------------------------- Director
John J. Lee
/s/ Harold E. Kinne President; Chief Operating July 22, 1999
- -------------------------- Officer; Director
Harold E. Kinne
/s/ Stephen C. Forsyth Executive Vice President; July 22, 1999
- -------------------------- Chief Financial Officer
Stephen C. Forsyth
/s/ Wayne C. Pensky Vice President; Controller; July 22, 1999
- -------------------------- Principal Accounting
Wayne C. Pensky Officer
/s/ John M.D. Cheesmond Director July 22, 1999
- --------------------------
John M.D. Cheesmond
/s/ Marshall S. Geller Director July 22, 1999
- --------------------------
Marshall S. Geller
/s/ John J. McGraw Director July 22, 1999
- --------------------------
John J. McGraw
/s/ Martin Riediker Director July 22, 1999
- --------------------------
Martin Riediker
/s/ Stanley Sherman Director July 22, 1999
- --------------------------
Stanley Sherman
Director July __, 1999
- --------------------------
Martin L. Solomon
/s/ Dr. George S. Springer Director July 22, 1999
- --------------------------
Dr. George S. Springer
EXHIBIT INDEX
Exhibit
- -------
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 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 Incentive Stock Plan as amended and restated on
January 30, 1997 and further amended on December 10, 1997 and March
25, 1999.
5.1 Opinion of Ira J. Krakower, General Counsel of Hexcel Corporation,
regarding legality of Common Stock covered by this Registration
Statement.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Ira J. Krakower (included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
99.1 Registration Statement on Form S-8 dated September 23, 1997,
Registration No. 333-36163, relating to the Hexcel Corporation
Incentive Stock Plan (incorporated herein by reference to
Registrant's Form S-8 Registration Statement, Registration No.
333-36163, dated September 23, 1997).
99.2 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).
EXHIBIT 4.3
HEXCEL CORPORATION
INCENTIVE STOCK PLAN,
AS AMENDED AND RESTATED JANUARY 30, 1997
AND FURTHER AMENDED DECEMBER 10, 1997
AND MARCH 25, 1999
I. PURPOSE
This Incentive Stock Plan, as approved by the stockholders of the
Corporation on February 21, 1996, combined the Hexcel Corporation Long-Term
Incentive Plan and the Hexcel Corporation 1995 Directors' Stock Option Plan
and, subject to approval by the stockholders of the Corporation, is now
amended and restated herein (as so amended and restated, the "Plan"). The
Plan is intended to attract, retain and provide incentives to Employees,
officers, Directors and consultants of the Corporation, and to thereby
increase overall stockholders' value. The Plan generally provides for the
granting of stock, stock options, stock appreciation rights, restricted
shares, other stock-based awards or any combination of the foregoing to the
eligible participants.
II. DEFINITIONS
(a) "Award" includes, without limitation, stock options (including
Director Options and incentive stock options within the meaning
of Section 422(b) of the Code) with or without stock
appreciation rights, dividend equivalent rights, stock awards,
restricted share awards, or other awards that are valued in
whole or in part by reference to, or are otherwise based on,
the Common Stock ("other Common Stock-based Awards"), all on a
stand-alone, combination or tandem basis, as described in or
granted under this Plan.
(b) "Award Agreement" means a written agreement setting forth the
terms and conditions of each Award made under this Plan.
(c) "Beneficial Owner" (and variants thereof) shall have the
meaning given in Rule 13d-3 promulgated under the Exchange Act.
(d) "Board" means the Board of Directors of the Corporation.
(e) "Ciba" shall mean Ciba-Geigy Limited, a Swiss corporation, or
such corporation or corporations as are substituted for
Ciba-Geigy Limited, together with their respective affiliates
and any former affiliates holding Corporation voting securities
pursuant to Section 4.01(b) of the Governance Agreement.
(f) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(g) "Committee" means the Executive Compensation Committee of the
Board or such other committee of the Board as may be designated
by the Board from time to time to administer this Plan.
(h) "Common Stock" means the $.01 par value common stock of the
Corporation.
(i) "Corporation" means Hexcel Corporation, a Delaware corporation.
(j) "Director" means a member of the Board.
(k) "Director Option" means a stock option granted pursuant to
Section VII hereof to a Director.
(l) "Director Optionee" means a recipient of an Award of a Director
Option.
(m) "Employee" means an employee of the Corporation or a
Subsidiary.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(o) "Fair Market Value" means the closing price for the Common
Stock as reported in publications of general circulation from
the New York Stock Exchange Consolidated Transactions Tape on
such date, or, if there were no sales on the valuation date, on
the next preceding date on which such closing price was
recorded; provided, however, that the Committee may specify
some other definition of Fair Market Value in good faith with
respect to any particular Award.
(p) "Governance Agreement" shall have the meaning given in the
Strategic Alliance Agreement.
(q) "Participant" means an Employee, officer, Director or
consultant who has been granted an Award under the Plan.
(r) "Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d)
of the Exchange Act, but excluding Ciba for so long as Ciba is
subject to the restrictions imposed by the Governance
Agreement.
(s) "Plan Year" means a calendar year.
(t) "Strategic Alliance Agreement" shall mean the Strategic
Alliance Agreement among the Corporation, Ciba-Geigy Limited
and Ciba-Geigy Corporation, dated as of September 29, 1995, as
amended.
(u) "Subsidiary" means any corporation or other entity, whether
domestic or foreign, in which the Corporation has or obtains,
directly or indirectly, a proprietary interest of more than 50%
by reason of stock ownership or otherwise.
III. ELIGIBILITY
Any Employee, officer, Director or consultant of the Corporation or
Subsidiary selected by the Committee is eligible to receive an Award
pursuant to Section VI hereof. Additionally, Directors described in Section
VII(a) hereof are eligible to receive Awards of Director Options pursuant
to Section VII.
IV. PLAN ADMINISTRATION
(a) Except as otherwise determined by the Board, the Plan shall be
administered by the Committee. The Board, or the Committee to
the extent determined by the Board, shall periodically make
determinations with respect to the participation of Employees,
officers, Directors and consultants in the Plan and, except as
otherwise required by law or this Plan, the grant terms of
Awards, including vesting schedules, price, restriction or
option period, dividend rights, post-retirement and termination
rights, payment alternatives such as cash, stock, contingent
awards or other means of payment consistent with the purposes
of this Plan, and such other terms and conditions as the Board
or the Committee deems appropriate which shall be contained in
an Award Agreement with respect to a Participant.
(b) The Committee shall have authority to interpret and construe
the provisions of the Plan and any Award Agreement and make
determinations pursuant to any Plan provision or Award
Agreement which shall be final and binding on all persons. No
member of the Committee shall be liable for any action or
determination made in good faith, and the members shall be
entitled to indemnification and reimbursement in the manner
provided in the Corporation's Certificate of Incorporation, as
it may be amended from time to time.
The Committee shall have the authority at the time of the grant of
any Award to provide for the conditions and circumstances under which such
Award shall be forfeited. The Committee shall have the authority to
accelerate the vesting of any Award and the time at which any Award becomes
exercisable.
V. CAPITAL STOCK SUBJECT TO THE PROVISIONS OF THIS PLAN
(a) The capital stock subject to the provisions of this Plan shall
be shares of authorized but unissued Common Stock and shares of
Common Stock held as treasury stock. Subject to adjustment in
accordance with the provisions of Section XI, and subject to
Section V(c) below, the maximum number of shares of Common
Stock that shall be available for grants of Awards under this
Plan shall be 6,572,351.
(b) The grant of a restricted share Award shall be deemed to be
equal to the maximum number of shares which may be issued under
the Award. Awards payable only in cash will not reduce the
number of shares available for Awards granted under the Plan.
(c) There shall be carried forward and be available for Awards
under the Plan, in addition to shares available for grant under
paragraph (a) of this Section V, all of the following: (i)
shares represented by Awards which are cancelled, forfeited,
surrendered, terminated, paid in cash or expire unexercised;
and (ii) the excess amount of variable Awards which become
fixed at less than their maximum limitations.
VI. DISCRETIONARY AWARDS UNDER THIS PLAN
As the Board or Committee may determine, the following types of
Awards and other Common Stock-based Awards may be granted under this Plan
on a stand-alone,
combination or tandem basis:
(a) Stock Option. A right to buy a specified number of shares of
Common Stock at a fixed exercise price during a specified time,
all as the Committee may determine.
(b) Incentive Stock Option. An Award which may be granted only to
Employees in the form of a stock option which shall comply with
the requirements of Code Section 422 or any successor section
as it may be amended from time to time. The exercise price of
any incentive stock option shall not be less than 100% of the
Fair Market Value of the Common Stock on the date of grant of
the incentive stock option Award. Subject to adjustment in
accordance with the provisions of Section XI, the aggregate
number of shares which may be subject to incentive stock option
Awards under this Plan shall not exceed the maximum number of
shares provided in paragraph (a) of Section V above. To the
extent that the aggregate Fair Market Value of Common Stock
with respect to which options intended to be incentive stock
options are exercisable for the first time by any individual
during any calendar year exceeds $100,000, such options shall
be treated as options which are not incentive stock options.
(c) Stock Option in lieu of Compensation Election. A right given
with respect to a year to a Director, officer or key Employee
to elect to exchange annual retainers, fees or compensation for
stock options.
(d) Stock Appreciation Right. A right which may or may not be
contained in the grant of a stock option or incentive stock
option to receive the excess of the Fair Market Value of a
share of Common Stock on the date the option is surrendered
over the option exercise price or other specified amount
contained in the Award Agreement.
(e) Restricted Shares. A transfer of Common Stock to a Participant
subject to forfeiture until such restrictions, terms and
conditions as the Committee may determine are fulfilled.
(f) Dividend or Equivalent. A right to receive dividends or their
equivalent in value in Common Stock, cash or in a combination
of both with respect to any new or previously existing Award.
(g) Stock Award. An unrestricted transfer of ownership of Common
Stock.
(h) Other Stock-Based Awards. Other Common Stock-based Awards which
are related to or serve a similar function to those Awards set
forth in this Section VI.
VII. FORMULA AWARDS UNDER THIS PLAN
In addition to discretionary Awards (including, without limitation,
options) that may be granted to Directors pursuant to Section VI hereof,
Director Options shall be granted as provided below:
(a) Grants of Director Options.
(i) As of April 4, 1995, each Director shall be granted an
Option to acquire 40,000 shares of Common Stock upon the
terms and subject to the conditions set forth in the Plan
and this Section VII. With respect to any individual who
becomes a Director and who is not also a full-time
employee of the Corporation or any Subsidiary (provided
such individual has not previously received a grant
pursuant to this Section VII(a)(i)), such individual
shall be granted as of the date of his election or
appointment as a Director a Director Option to acquire
(x) 40,000 shares of Common Stock if elected or appointed
between April 4, 1995 and December 31, 1996 inclusive or,
(y) 10,000 shares of Common Stock if elected or appointed
on or after January 1, 1997, upon the terms and subject
to the conditions set forth in the Plan and this Section
VII.
(ii) On April 4, 1996 and immediately after each annual
meeting of stockholders of the Corporation held after
January 1, 1997 and before February 7, 2005, each person
who is not on such date also a full-time employee of the
Corporation or any Subsidiary and who (x) is a Director
on April 4, 1996 or (y) has been re-elected at such
meeting, shall be granted a Director Option to acquire
2,000 shares of Common Stock upon the terms and subject
to the conditions set forth in the Plan and this Section
VII.
(iii) If on any date when Options are to be granted pursuant to
Section VII(a)(i) or (ii) the total number of shares of
Common Stock as to which Director Options are to be
granted exceeds the number of shares of Common Stock
remaining available under the Plan, there shall be a pro
rata reduction in the number of shares of Common Stock as
to which each Director Option is granted on such day.
(b) Terms of Director Options.
The terms of each Director Option granted under this Section VII
shall be determined by the Board consistent with the provisions of the
Plan, including the following:
(i) The purchase price of the shares of Common Stock subject
to each Director Option shall be equal to the Fair Market
Value of such shares on the date such
option is granted.
(ii) Each Director Option shall be exercisable as to one-third
of the shares subject thereto immediately upon the grant
of the option and as to an additional one-third of such
shares on the first and second anniversaries of the date
of such grant.
(iii) Shares of Common Stock obtained upon exercise of a
Director Option may not be sold until six months after
the date such option was
granted.
(iv) Each Director Option shall expire ten years after the
granting thereof. Each Director Option shall be subject
to earlier expiration as expressly provided in
Section VII(c) hereof.
(c) Disability, Death or Termination of Director Status; Change in
Control.
(i) If a Director Optionee ceases to be a Director for any
reason other than his disability or death, each Director
Option held by him to the extent exercisable on the
effective date of his ceasing to be a Director shall
remain exercisable until the earlier to occur of (i) the
first anniversary of such effective date and (ii) the
expiration of the stated term of the Director Option;
provided, however, that if the Director Optionee is
removed, withdraws or otherwise ceases to be a Director
due to his fraud, dishonesty or intentional
misrepresentation in connection with his duties as a
Director or his embezzlement, misappropriation or
conversion of assets or opportunities of the Corporation
or any Subsidiary, all unexercised Director Options held
by the Director Optionee shall expire forthwith. Each
Director Option held by the Director Optionee to the
extent not exercisable on the effective date of his
ceasing to be a Director for any reason other than his
disability or death shall expire forthwith.
(ii) If a Director Optionee ceases to be a Director as a
result of his disability or death, each Director Option
held by him to the extent that the Director Option is
exercisable on the effective date of his ceasing to be a
Director shall remain exercisable by the Director
Optionee or the Director Optionee's executor,
administrator, legal representative or beneficiary, as
the case may be, until the earlier to occur of (x) the
third anniversary of such effective date and (y) the
expiration of the stated term of the Director Option.
Each Director Option held by the Director Optionee to the
extent not exercisable on the effective date of his
ceasing to be a Director as a result of his disability or
death shall expire forthwith.
(iii) In the event of a Change in Control (as hereinafter
defined) while a Director Optionee is a Director, each
Director Option held by the Director Optionee to the
extent not then exercisable shall thereupon become
exercisable. If a Change in Control occurs on or before
the effective date of a Director Optionee's ceasing to be
a Director, the provisions of this subsection (iii) shall
govern with respect to the exercisability of the Director
Options held by him as of the date on which the Director
Optionee ceases to be a Director and the provisions of
subsection (i) or (ii) of this Section VII(c) shall
govern with respect to the period of time during which
such Director Options shall remain exercisable. For
purposes of this subsection (iii), "Change in Control"
shall mean any of the following events:
(1) (a) any Person is or becomes the Beneficial
Owner of 20% or more of either (i) the then outstanding
Common Stock of the Corporation (the "Outstanding Common
Stock") or (ii) the combined voting power of the then
outstanding securities entitled to vote generally in the
election of directors of the Corporation (the "Total
Voting Power"); excluding, however, the following: (A)
any acquisition by the Corporation or any of its
affiliates or (B) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the
Corporation or any of its affiliates and (b) Ciba
beneficially owns, in the aggregate, a lesser percentage
of the Total Voting Power than such Person beneficially
owns; or
(2) a change in the composition of the Board such
that the individuals who, as of January 30, 1997,
constitute the Board (such individuals shall be
hereinafter referred to as the "Incumbent Directors")
cease for any reason to constitute at least a majority of
the Board; provided, however, for purposes of this
definition, that any individual who becomes a director
subsequent to such effective date, whose election, or
nomination for election by the Corporation's
stockholders, was made or approved pursuant to the
Governance Agreement or by a vote of at least a majority
of the Incumbent Directors (or directors whose election
or nomination for election was previously so approved)
shall be considered a member of the Incumbent Board; but,
provided, further, that any such individual whose initial
assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a
person or legal entity other than the Board shall not be
considered a member of the Incumbent Board; or
(3) the approval by the stockholders of the
Corporation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all
of the assets of the Corporation ("Corporate
Transaction"); excluding, however, such a Corporate
Transaction (a) pursuant to which all or substantially
all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding
Common Stock and Total Voting Power immediately prior to
such Corporate Transaction will beneficially own,
directly or indirectly, more than 50%, respectively, of
the outstanding common stock and the combined voting
power of the then outstanding securities entitled to vote
generally in the election of directors of the company
resulting from such Corporate Transaction (including,
without limitation, a corporation which as a result of
such transaction owns the Corporation or all or
substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in
substantially the same proportions as their ownership
immediately prior to such Corporate Transaction of the
Outstanding Common Stock and Total Voting Power, as the
case may be, or (b) after which no Person beneficially
owns a greater percentage of the combined voting power of
the then outstanding securities entitled to vote
generally in the election of directors of such
corporation than does Ciba; or
(4) Ciba shall become the Beneficial Owner of more
than 57.5% of the Total Voting Power; or
(5) the approval by the stockholders of the
Corporation of a complete liquidation or dissolution of
the Corporation.
VIII. AWARD AGREEMENTS
Each Award under the Plan shall be evidenced by an Award Agreement
setting forth the terms and conditions of the Award and executed by the
Corporation and Participant.
IX. OTHER TERMS AND CONDITIONS
(a) Assignability. Unless provided to the contrary in any Award, no
Award shall be assignable or transferable except by will, by
the laws of descent and distribution and during the lifetime of
a Participant, the Award shall be exercisable only by such
Participant. No Award granted under the Plan shall be subject
to execution, attachment or process.
(b) Termination of Employment or Other Relationship. Except as
provided in Section VII(c) with respect to Director Options,
the Committee shall determine the disposition of the grant of
each Award in the event of the retirement, disability, death or
other termination of a Participant's employment or other
relationship with the Corporation or a Subsidiary.
(c) Rights as a Stockholder. A Participant shall have no rights as
a stockholder with respect to shares covered by an Award until
the date the Participant is the holder of record. No adjustment
will be made for dividends or other rights for which the record
date is prior to such date.
(d) No Obligation to Exercise. The grant of an Award shall impose
no obligation upon the Participant to exercise the Award.
(e) Payments by Participants. The Committee may determine that
Awards for which a payment is due from a Participant may be
payable: (i) in U.S. dollars by personal check, bank draft or
money order payable to the order of the Corporation, by money
transfers or direct account debits; (ii) through the delivery
or deemed delivery based on attestation to the ownership of
shares of Common Stock with a Fair Market Value equal to the
total payment due from the Participant; (iii) pursuant to a
"cashless exercise" program if established by the Corporation;
(iv) by a combination of the methods described in (i) through
(iii) above; or (v) by such other methods as the Committee may
deem appropriate.
(f) Withholding. Except as otherwise provided by the Committee, (i)
the deduction of withholding and any other taxes required by
law will be made from all amounts paid in cash and (ii) in the
case of payments of Awards in shares of Common Stock, the
Participant shall be required to pay the amount of any taxes
required to be withheld prior to receipt of such stock, or
alternatively, a number of shares the Fair Market Value of
which equals the amount required to be withheld may be deducted
from the payment.
(g) Maximum Awards. The maximum number of shares of Common Stock
that may be issued to any single Participant pursuant to
options under this Plan is equal to the maximum number of
shares provided for in paragraph (a) of Section V.
X. TERMINATION, MODIFICATION AND AMENDMENTS
(a) The Executive Compensation Committee may at any time terminate
the Plan or from time to time make such modifications or
amendments of the Plan as it may deem advisable; provided,
however, that no amendments to the Plan which require
stockholder approval under applicable law, rule or regulation
shall become effective unless the same shall be approved by the
requisite vote of the Corporation's stockholders.
(b) No termination, modification or amendment of the Plan may
adversely affect the rights conferred by an Award without the
consent of the recipient thereof.
(c) Notwithstanding anything herein to the contrary, the provisions
of Section VII shall not be amended more than once every six
months, other than to comport with changes in the Code, the
Employee Retirement Income Security Act, or the rules
thereunder.
XI. RECAPITALIZATION
The aggregate number of shares of Common Stock as to which Awards may
be granted to Participants, the number of shares thereof covered by each
outstanding Award, and the price per share thereof in each such Award,
shall all be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a subdivision or
consolidation of shares or other capital adjustment, or the payment of a
stock dividend or other increase or decrease in such shares, effected
without receipt of consideration by the Corporation, or other change in
corporate or capital structure; provided, however, that any fractional
shares resulting from any such adjustment shall be eliminated. The
Committee shall also make the foregoing changes and any other changes,
including changes in the classes of securities available, to the extent it
is deemed necessary or desirable to preserve the intended benefits of the
Plan for the Corporation and the Participants in the event of any other
reorganization, recapitalization, merger, consolidation, spin-off,
extraordinary dividend or other distribution or similar transaction.
XII. NO RIGHT TO EMPLOYMENT
Except as provided in Section VII with respect to Director Options,
no person shall have any claim or right to be granted an Award, and the
grant of an Award shall not be construed as giving a Participant the right
to be retained in the employ of, or in the other relationship with, the
Corporation or a Subsidiary. Further, the Corporation and each Subsidiary
expressly reserve the right at any time to dismiss a Participant free from
any liability, or any claim under the Plan, except as provided herein or in
any Award Agreement issued hereunder.
XIII. 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.
XIV. SAVINGS CLAUSE
This Plan is intended to comply in all aspects with applicable laws
and regulations. In case any one more of the provisions of this Plan shall
be held invalid, illegal or unenforceable in any respect under applicable
law and regulation, 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 provision 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.
XV. EFFECTIVE DATE AND TERM
The Hexcel Corporation Incentive Stock Plan is amended and restated
herein on January 30, 1997. The effectiveness of such amendment and
restatement is subject to approval by stockholders of the Corporation.
AWARDS GRANTED UNDER THE AMENDED AND RESTATED PLAN PRIOR TO SUCH
APPROVAL BY THE STOCKHOLDERS SHALL BE SUBJECT TO SUCH APPROVAL. THE PLAN
SHALL TERMINATE ON FEBRUARY 8, 2005. NO AWARDS SHALL BE GRANTED AFTER THE
TERMINATION OF THE PLAN.
EXHIBIT 5.1
Hexcel Corporation
Two Stamford Plaza
281 Tresser Blvd.
Stamford, CT 06901
July 26, 1999
Hexcel Corporation
Two Stamford Plaza
281 Tresser Boulevard
Stamford, Connecticut 06901
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am General Counsel of Hexcel Corporation, a Delaware corporation (the
"Company"), and am furnishing this opinion 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 700,000 shares
(the "Shares") of the common stock, par value $0.01 per share (the "Common
Stock"), of the Company issuable upon exercise of options and stock awards
that may be granted under the Company's Incentive Stock Plan (as amended,
the "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").
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of (a) the Registration Statement, (b) the Plan, (c) a
specimen certificate evidencing the Common Stock, (d) the Restated
Certificate of Incorporation of the Company, as amended to date, (e) the
Amended and Restated By-Laws of the Company, as amended to date, (f)
certain resolutions of the Board of Directors of the Company relating to,
among other things, the Plan, and (g) such other documents as I deemed
necessary or appropriate as a basis for the opinions set forth below.
In making my examination of documents executed by parties other than the
Company, I 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. In rendering the
opinion set forth below, I 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 me and (ii) prior to the issuance of any
Shares, the Company and the relevant grantee will have duly entered into
award agreements ("Award Agreements") in accordance with the terms of the
Plan. I am admitted to the Bar of the State of New York, and I do not
express any opinion as to the laws of any jurisdiction other than the
General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, I am 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 Plan and the
Award Agreements, will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission (the "Commission") as Exhibit 5 to the Registration
Statement. In giving such consent, I do not thereby admit that I am 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/ Ira J. Krakower
Ira J. Krakower
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 21, 1999,
except as to Ciba Senior Subordinated Notes Payable and Aggregate
Maturities of Notes Payable and Indebtedness to Related Parties in Note 7
which are as of February 17, 1999, relating to the financial statements,
which appears in Hexcel Corporation's Annual Report of Form 10-K for the
year December 31, 1998
PricewaterhouseCoopers LLP
San Jose, California
July 19, 1999
EXHIBIT 23.2
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, 1998.
Deloitte & Touche LLP
Oakland, California
July 19, 1999
