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 MANAGEMENT STOCK PURCHASE 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 147,020 $8.84 $1,299,657 $361.30
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 Management Stock Purchase Plan (as amended,
the "Plan"). By virtue of an amendment to the Plan, the number of
shares issuable thereunder was increased from 150,000 to 297,020.
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 an aggregate 150,000
shares of its Common Stock, $0.01 par value, issuable under the Hexcel
Corporation Management Stock Purchase Plan (as amended, the "Plan"). This
Registration Statement is being filed pursuant to General Instruction E to
Form S-8 to register an additional 147,020 shares issuable under the Plan.
The Registrant hereby incorporates by reference Registrant's previous Form
S-8 Registration Statement (File No. 333-36099) relating to the Plan, as
filed with the Securities and Exchange Commission (the "Commission") on
September 22, 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 Management Stock Purchase 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 Management Stock Purchase Plan, as
amended on 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.
333-36099, relating to the Hexcel Corporation Management
Stock Purchase Plan (incorporated herein by reference to
Registrant's Form S-8 Registration Statement, File No.
333-36099, dated September 22, 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 Management Stock Purchase Plan as amended on 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 22, 1997,
Registration No. 333-36099, relating to the Hexcel Corporation
Management Stock Purchase Plan (incorporated herein by reference
to Registrant's Form S-8 Registration Statement, Registration
No. 333-36099, dated September 22, 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
MANAGEMENT STOCK PURCHASE PLAN
AS AMENDED MARCH 25, 1999
I. PURPOSES; TYPES OF GRANTS; CONSTRUCTION.
The purposes of the Hexcel Corporation Management Stock Purchase Plan
(the "Plan") are to attract and retain highly-qualified executives, to
align executive and stockholder long-term interests by creating a direct
link between annual incentive executive compensation and stockholder return
and to enable executives to purchase stock by using a portion of their
annual incentive compensation so that they can develop and maintain a
substantial stock ownership position in Hexcel Corporation (the "Company").
II. DEFINITIONS.
As used in this Plan, the following words and phrases shall have the
meanings indicated:
"Agreement" shall mean an agreement entered into between the Company
and a Participant in connection with a grant under the Plan.
"Annual Bonus" shall mean the bonus earned by a Participant for any
Company fiscal year under the Annual Plan.
"Annual Plan" shall mean the Hexcel Corporation Management Incentive
Compensation Plan, as amended from time to time.
"Beneficial Owner" (and variants thereof) shall have the meaning
given in Rule 13d-3 promulgated under the Exchange Act.
"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean (i) the willful and continued failure by the
Participant to substantially perform the Participant's duties with
the Company (other than any such failure resulting from the
Participant's incapacity due to physical or mental illness) after a
written demand for substantial performance is delivered to the
Participant by the Company, which demand specifically identifies the
manner in which the Company believes that the Participant has not
substantially performed the Participant's duties, or (ii) the willful
engaging by the Participant in conduct which is demonstrably and
materially injurious to the Company or its subsidiaries, monetarily
or otherwise. For purposes of clauses (i) and (ii) of this
definition, no act, or failure to act, on the Participant's part
shall be deemed "willful" unless done, or omitted to be done, by the
Participant not in good faith and without reasonable belief that the
Participant's act, or failure to act, was in the best interest of the
Company.
"Change in Control" shall have the meaning given in Article 6 hereof.
"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 Company voting securities pursuant to Section
4.01(b) of the Governance Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean the Executive Compensation Committee of the
Board or such other committee of the Board as may be designated by
the Board.
"Company" shall mean Hexcel Corporation, a corporation organized
under the laws of the State of Delaware, or any successor
corporation.
"Disability" shall mean that, as a result of the Participant's
incapacity due to physical or mental illness or injury, the
Participant shall not have performed all or substantially all of the
Participant's usual duties as an employee for a period of more than
one-hundred-fifty (150) days in any period of one-hundred-eighty
(180) consecutive days.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" per share of Stock shall be the average of the
closing prices on the NYSE Consolidated Transactions Tape for the
five trading days immediately preceding the relevant valuation date
and "Fair Market Value" of a Restricted Stock Unit on any valuation
date shall be deemed to be equal to the Fair Market Value of a share
of Stock on such valuation date.
"Governance Agreement" shall have the meaning given in the Strategic
Alliance Agreement.
"Participant" shall mean a person who receives a grant of Restricted
Stock Units under the Plan; all such grants are sometimes referred to
herein as "purchases".
"Person", as used in Article 6 hereof, 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.
"Plan" means this Hexcel Corporation Management Stock Purchase Plan, as
amended from time to time.
"Restricted Period" shall have the meaning given in Sections 5(c) and
5(h) hereof.
"Restricted Stock Unit" or "Restricted Stock Units" shall have the
meaning given in Section 5 hereof.
"Retirement" shall mean the termination of a Participant's employment
(other than by reason of death or Cause) which occurs either (i) at
or after age 65 or (ii) at or after age 55 after five (5) years of
employment by the Company (or a Subsidiary thereof).
"Stock" shall mean shares of the common stock of the Company, par
value $.01 per share.
"Strategic Alliance Agreement" shall mean the Strategic Alliance
Agreement among Hexcel Corporation, Ciba-Geigy Limited and Ciba-Geigy
Corporation, dated as of September 29, 1995, as amended.
"Subsidiary" shall mean any subsidiary of the Company (whether or not
a subsidiary at the date the Plan is adopted) which is designated by
the Committee to participate in the Plan.
"Term" shall have the meaning given in Article 14 hereof.
III. STOCK.
The maximum number of shares of the Stock which shall be reserved for
the grant of Restricted Stock Units under the Plan shall be 297,020, which
number shall be subject to adjustment as provided in Article 7 hereof. Such
shares may be either authorized but unissued shares or shares that shall
have been or may be reacquired by the Company.
If any outstanding grant of Restricted Stock Units under the Plan
should, for any reason be cancelled or be forfeited before all its
restrictions lapse, the shares of Stock allocable to the cancelled or
terminated portion of such grant shall (unless the Plan shall have been
terminated) become available for subsequent grants under the Plan.
IV. ELIGIBILITY.
During the Term of the Plan any Participant in the Annual Plan (who
has been designated by the Committee as a Participant in this Plan) can
elect to receive up to fifty (50%) percent of the Participant's Annual
Bonus in Restricted Stock Units granted pursuant to, and subject to the
terms and conditions of, this Plan. Except as otherwise provided by the
Committee in its discretion with respect to the first fiscal year of the
Company in which (i) the Plan is in effect or (ii) a Participant
participates in the Plan, any such election by a Participant must be made
at least six months prior to the day the amount of the Participant's Annual
Bonus is finally determined under the Annual Plan. Since the Restricted
Stock Units are "purchased" with part or all of the Annual Bonus, all
Restricted Stock Unit grants under this Plan are sometimes referred to
herein as "purchases." For purposes of the Plan, the date of purchase of a
Restricted Stock Unit shall be deemed to be the date the Annual Bonus (from
which the purchase funds are derived) is payable.
V. RESTRICTED STOCK UNITS.
Each grant of Restricted Stock Units under the Plan shall be
evidenced by a written Agreement between the Company and the Participant,
in such form as the Committee shall from time to time approve, and shall
comply with the following terms and conditions (and with such other terms
and conditions not inconsistent with the terms of this Plan as the
Committee, in its discretion, shall establish):
(a) NUMBER OF RESTRICTED STOCK UNITS. Each Agreement shall state
the number of Restricted Stock Units to be subject to a grant.
(b) PRICE. The price of each Restricted Stock Unit purchased under
the Plan shall be eighty (80%) percent of its Fair Market Value
on the date of purchase. Notwithstanding any other provision of
the Plan, in no event shall the price per Restricted Stock Unit
be less than the par value per share of Stock.
(c) NORMAL VESTING; NORMAL END OF RESTRICTED PERIOD. Subject to
Section 5(d) hereof, one-third (1/3) of Restricted Stock Units
purchased on a given date shall vest on each of the first three
anniversaries of the date of purchase, but the Restricted
Period of all Restricted Stock Units purchased on that date
shall end on the third anniversary thereof.
(d) ACCELERATION OF VESTING AND END OF RESTRICTED PERIOD.
Notwithstanding Section 5(c) hereof, a Participant's Restricted
Stock Units shall immediately become completely vested and
their respective Restricted Periods shall end upon the first to
occur of (x) a Change in Control, (y) the involuntary
termination of the Participant's employment without Cause, or
(z) the termination of a Participant's employment by reason of
Retirement or the Participant's death or Disability.
Additionally, the Committee shall have the authority to vest
any or all of a Participant's Restricted Stock Units and to end
their respective Restricted Periods at such earlier time or
times and on such terms and conditions as the Committee shall
deem appropriate.
(e) PAYMENT AT END OF RESTRICTED PERIOD. Upon the end of the
Restricted Period with respect to a Restricted Stock Unit, the
Participant (or the Participant's estate, in the event of the
Participant's death) will receive payment of all the
Participant's Restricted Stock Units in the form of an equal
number of unrestricted shares of Stock.
(f) TERMINATION DURING THE RESTRICTED PERIOD AND VESTED RESTRICTED
STOCK UNITS; PAYMENT. If the termination of the employment of a
Participant occurs during the Restricted Period, the
Participant (or the Participant's estate, in the event of the
Participant's death) will receive unrestricted shares of Stock
equal in number to the Participant's vested Restricted Stock
Units.
(g) TERMINATION DURING RESTRICTED PERIOD AND UNVESTED RESTRICTED
STOCK UNITS; PAYMENT. If the termination of the employment of a
Participant occurs during the Restricted Period, the
Participant will receive a cash payment equal to eighty (80%)
percent of the Fair Market Value of the Participant's unvested
Restricted Stock Units on the date of their purchase.
(h) RESTRICTIONS. Restricted Stock Units (whether or not vested)
may not be sold, assigned, transferred, pledged, hypothecated
or otherwise disposed of, except by will or the laws of descent
and distribution, during the Restricted Period. The Committee
may also impose such other restrictions and conditions on the
shares as it deems appropriate.
VI. CHANGE IN CONTROL OF THE COMPANY.
For purposes of the Plan, the term "Change in Control" shall mean any
of the following events:
(a) (i) any Person is or becomes the Beneficial Owner of 20% or
more of either (x) the then outstanding common stock of the
Company (the "Outstanding Common Stock") or (y) the combined
voting power of the then outstanding securities entitled to
vote generally in the election of directors of the Company (the
"Total Voting Power"), excluding, however, the following: (1)
any acquisition by the Company or any of its affiliates or (2)
any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its
affiliates; and (ii) Ciba Beneficially Owns, in the aggregate,
a lesser percentage of the Total Voting Power than such Person
Beneficially Owns; or
(b) a change in the composition of the Board such that the
individuals who, as of the date of the adoption of the Plan by
the Board, 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 date,
whose election, or nomination for election by the Company'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
(c) the approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company ("Corporate Transaction"); excluding, however, such a
Corporate Transaction (i) 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
Company or all or substantially all of the Company'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 (ii) 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
(d) Ciba shall become the Beneficial Owner of more than 57.5% of
the Total Voting Power; or
(e) the approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
VII. EFFECT OF CERTAIN CHANGES.
In the event of any extraordinary dividend, stock dividend,
recapitalization, merger, consolidation, stock split, warrant or rights
issuance, or combination or exchange of such shares, or other similar
transactions, the number of shares of Stock available for grants and the
number of such shares covered by outstanding grants shall be equitably
adjusted by the Committee to reflect such event and preserve the value of
such grants; provided, however, that any fractional shares resulting from
such adjustment shall be eliminated.
VIII. PAYMENT OF WITHHOLDING TAXES.
The Committee shall have discretion to permit or require a
Participant, on such terms and conditions as it determines, to pay all or a
portion of any taxes arising in connection with a purchase of Restricted
Stock Units hereunder or the vesting or lapse of restrictions with respect
thereto by having the applicable employer withhold shares of the Stock or
by the Participant's delivering other shares of Stock having a then-current
Fair Market Value equal to the amount of taxes to be withheld.
IX. RIGHTS AS A STOCKHOLDER.
A Participant or a transferee of a grant shall have no rights as a
stockholder with respect to any shares of Stock which may become issuable
pursuant to the grant until the date of the issuance of a stock certificate
to him or her for such shares. No adjustment shall be made for dividends
(whether ordinary or extraordinary, and whether in cash, securities or
other property) or distribution of other rights for which the record date
is prior to the date such stock certificate is issued, except as provided
in Article 7 hereof.
X. NO RIGHTS TO EMPLOYMENT.
Nothing in the Plan or in any grant made or Agreement entered into
pursuant hereto shall confer upon any Participant the right to continue in
the employ of the Company or any Subsidiary or to be entitled to any
remuneration or benefits not set forth in the Plan or such Agreement or to
interfere with, or limit in any way, the right of the Company or any such
Subsidiary to terminate such Participant's employment. Grants made under
the Plan shall not be affected by any change in duties or position of a
Participant as long as such Participant continues to be employed by the
Company or any Subsidiary.
XI. ADMINISTRATION.
The Plan shall be administered by the Committee. The Committee shall
have the authority in its discretion, subject to and not inconsistent with
the express provisions of the Plan, to administer the Plan and to exercise
all the 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 grant Restricted Stock
Units; to determine the persons to whom, and the time or times at which
grants shall be granted; to determine the number of Restricted Stock Units
to be covered by each grant; to interpret the Plan; to prescribe, amend and
rescind rules and regulations relating to the Plan; to determine the terms
and provisions of the Agreements (which need not be identical) and to
cancel or suspend grants, as necessary; and to make all other
determinations deemed necessary or advisable for the administration of the
Plan.
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. All decisions, determinations and
interpretations of the Committee shall be final and binding on all persons,
including the Company, the Participant (or any person claiming any rights
under the Plan from or through any Participant) and any stockholder.
No member of the Board or Committee shall be liable for any action
taken or determination made in good faith with respect to the Plan or any
grant hereunder.
XII. AMENDMENT AND TERMINATION OF THE PLAN.
The Board at any time and from time to time may suspend, terminate,
modify or amend the Plan; provided, however, that an amendment for which
the Board determines stockholder approval is necessary or appropriate under
the circumstances then prevailing shall not be effective unless approved by
the requisite vote of stockholders. Except as provided in Article 7 hereof,
no suspension, termination, modification or amendment of the Plan may
adversely affect any grant previously made to a Participant, unless the
written consent of the Participant is obtained.
XIII. GOVERNING LAW.
The Plan and all determinations made and actions taken pursuant
hereto shall be governed by the laws of the State of Delaware.
XIV. EFFECTIVE DATE; APPROVAL OF STOCKHOLDERS; TERM.
The Plan shall become effective January 1, 1997, subject to the
approval of the shareholders of the Company. Unless the Plan is terminated
earlier pursuant to Article 12 hereof, the Term of the Plan shall end on
March 31, 2007 (or such earlier date as all Restricted Stock Units to be
granted in connection with elections made under the Annual Plan with
respect to the Company's 2006 fiscal year have been granted), and no grants
shall be made thereafter. However, holdings of Restricted Stock Units
granted hereunder may extend beyond such date, and the provisions of the
Plan shall continue to apply to such Restricted Stock Units.
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 147,020 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 Management Stock Purchase 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
