UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Hexcel Corporation
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(Name of Issuer)
Common Stock (Par Value $ 0.01 Per Share)
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(Title of Class of Securities)
428290 10 0
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(CUSIP Number)
Robert C. Schwenkel, Esq. Ben I. Adler, Esq.
Fried, Frank, Harris, Shriver & Jacobson Goldman, Sachs & Co.
One New York Plaza 85 Broad Street
New York, NY 10004 New York, NY 10004
(212) 859-8000 (212) 902-1000
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(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications)
December 18, 2002
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box |_|.
Note. Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 2 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
THE GOLDMAN SACHS GROUP, INC.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF,OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 32,002
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 14,525,000
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 32,002
10. SHARED DISPOSITIVE POWER
14,525,000
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,557,002
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
37.9%
14. TYPE OF REPORTING PERSON
HC-CO
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 3 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GOLDMAN, SACHS & CO.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [X]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 14,525,000
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
14,525,000
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,525,000
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
37.8%
14. TYPE OF REPORTING PERSON
BD-PN-IA
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 4 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS ADVISORS 2000, L.L.C.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 11,278,155
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
11,278,155
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,278,155
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
29.4%
14. TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 5 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GOLDMAN, SACHS & CO. oHG
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
GERMANY
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 345,764
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
345,764
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
345,764
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.9%
14. TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 6 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GOLDMAN, SACHS MANAGEMENT GP GmbH
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
GERMANY
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 345,764
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
345,764
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
345,764
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.9%
14. TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 7 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS EMPLOYEE FUNDS 2000 GP, L.L.C.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 2,628,354
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
2,628,354
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,628,354
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.8%
14. TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 8 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
STONE STREET 2000, L.L.C.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 272,727
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
272,727
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
272,727
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.7%
14. TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 9 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS CAPITAL PARTNERS 2000, L.P.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 8,272,312
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
8,272,312
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,272,312
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.5%
14. TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 10 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
CAYMAN ISLANDS
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 3,005,843
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
3,005,843
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,005,843
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
14. TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 11 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS CAPITAL PARTNERS 2000 GmbH & CO. BETEILIGUNGS KG
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
GERMANY
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 345,764
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
345,764
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
345,764
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.9%
14. TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 12 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 2,628,354
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
2,628,354
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,628,354
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.8%
14. TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 13 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
STONE STREET FUND 2000, L.P.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 272,727
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
272,727
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
272,727
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.7%
14. TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 14 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LXH HOLDINGS CORP.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 221,325.7
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
221,325.7
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
221,325.7
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6%
14. TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 15 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LXH HOLDINGS, L.P.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 257,299.2
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
257,299.2
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
257,299.2
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.7%
14. TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 16 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LXH, L.L.C.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF, WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 8,272,312
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
8,272,312
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,272,312
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.5%
14. TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 17 of 67
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LXH II, L.L.C.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS
AF, WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7. SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH 6,252,688
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON WITH 0
10. SHARED DISPOSITIVE POWER
6,252,688
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,252,688
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.3%
14. TYPE OF REPORTING PERSON
OO
This Amendment No. 1, filed by The Goldman Sachs Group, Inc. ("GS
Group"), Goldman, Sachs & Co. ("Goldman Sachs"), GS Advisors 2000, L.L.C.
("GS Advisors"), Goldman, Sachs & Co. oHG ("GS oHG"), Goldman, Sachs
Management GP GmbH ("GS GmbH"), GS Employee Funds 2000 GP, L.L.C. ("GS
Employee 2000"), Stone Street 2000, L.L.C. ("Stone 2000"), GS Capital
Partners 2000, L.P. ("GS Capital"), GS Capital Partners 2000 Offshore, L.P.
("GS Offshore"), GS Capital Partners 2000 GmbH & Co. Beteiligungs KG ("GS
Germany"), GS Capital Partners 2000 Employee Fund, L.P. ("GS Employee"),
Stone Street Fund 2000, L.P. ("Stone Street" and, together with GS Capital,
GS Offshore, GS Germany and GS Employee, the "Limited Partnerships"), LXH
Holdings Corp. ("LXH Corp."), LXH Holdings, L.P. ("LXH L.P."), LXH, L.L.C.
("LXH"), and LXH II, L.L.C. ("LXH II" and, together with LXH, the "Original
Purchasers") (GS Group, Goldman Sachs, GS Advisors, GS oHG, GS GmbH, GS
Employee 2000, Stone 2000, the Limited Partnerships, LXH Corp., LXH L.P.,
and the Original Purchasers, collectively, the "Filing Persons"), amends
and supplements the Schedule 13D filed by the Filing Persons with the
Securities and Exchange Commission (the "SEC") on December 28, 2000 (the
"Schedule 13D"), relating to the common stock, par value $0.01 per share
(the "Common Stock"), of Hexcel Corporation, a Delaware corporation (the
"Company"). Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to such terms in the Schedule 13D.(1)
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
The seventh and eighth sentences of the second paragraph of Item 2 are
hereby amended and restated as follows:
GS oHG, a German partnership, is the sole stockholder of GS GmbH. GS GmbH,
a German corporation, is the sole managing partner of GS Germany.
The eleventh sentence of the second paragraph of Item 2 is hereby amended
to reflect that GS Germany is a German limited partnership, not a German
civil law partnership.
The third sentence of the third paragraph of Item 2 is hereby amended and
restated as follows:
The name, business address, present principal occupation or employment and
citizenship of each member of the Principal Investment Area Investment
Committee of Goldman Sachs, which is responsible for making all investment
and management decisions for GS Advisors, GS Capital, GS Offshore, GS
Germany, GS Employee and Stone Street on behalf of Goldman Sachs, are set
forth in Schedule II-A-ii hereto and are incorporated herein by reference.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
-------------------------------------------------
Item 3 is hereby amended to add the following at the end thereof:
As more fully described in Item 4 below, on December 18, 2002
(the "Signing Date"), the Limited Partnerships and the Company entered into
a stock purchase agreement (the "December Stock Purchase Agreement"),
pursuant to which, upon the terms and subject to the conditions contained
therein, the Limited Partnerships agreed to purchase an aggregate of 47,125
shares (the "Series A Shares") of the Company's Series A Convertible
Preferred Stock, without par value (the "Series A Preferred Stock"), and
47,125 shares (the "Series B Shares" and, together with the Series A
Shares, the "Shares") of the Company's Series B Convertible Preferred
Stock, without par value (the "Series B Preferred Stock" and together with
the Series A Preferred Stock, the "Preferred Stock"), for an aggregate
purchase price of $47,125,000. As of December 18, 2002, the Shares
initially would be convertible into 18,781,162 shares of Common Stock,
based on the initial conversion price of the Series A Preferred Stock and
the Series B Preferred Stock of $3.00. The transactions contemplated by the
December Stock Purchase Agreement are expected to close prior to May 30,
2003. The Limited Partnerships will obtain the funds required to purchase
the Shares from capital contributions made by the partners of each of the
Limited Partnerships.
--------
1 Neither the present filing nor anything contained herein will be
construed as an admission that any Filing Person constitutes a
"person" for any purpose other than for compliance with Section 13(d)
of the Securities Exchange Act of 1934.
ITEM 4. PURPOSE OF TRANSACTION.
----------------------
Item 4 is hereby amended by adding the following immediately before the
section entitled "Other Plans and Proposals" contained in the Schedule 13D:
General
-------
The purpose of the contemplated acquisition of the Shares by the
Limited Partnerships is to maintain a significant equity interest in the
Company. The acquisition of the Shares by the Limited Partnerships upon the
consummation of the transactions contemplated by the December Stock
Purchase Agreement will maintain the percentage of the voting power of the
Company's outstanding voting stock beneficially owned by the Limited
Partnerships at approximately the same level beneficially owned by the
Limited Partnerships on the date hereof.
December Stock Purchase Agreement
---------------------------------
Pursuant to the December Stock Purchase Agreement, the Limited
Partnerships have agreed to purchase an aggregate of 47,125 shares of
Series A Preferred Stock and 47,125 shares of Series B Preferred Stock from
the Company for an aggregate purchase price of $47,125,000 in cash. Subject
to the satisfaction or waiver of the closing conditions set forth in the
December Stock Purchase Agreement, the closing of the December Stock
Purchase Agreement (the "Closing") will occur on such date and time (the
"Shares Closing Date") as agreed upon by the Company and the Limited
Partnerships, but in no event later than two business days following the
date of the Stockholder Approval (as defined below). The December Stock
Purchase Agreement contains customary representations and warranties by the
parties for transactions of the type contemplated thereby.
Conditions to Obligations of the Limited Partnerships and the
Company
The respective obligations of the Limited Partnerships and the
Company to consummate the Closing are subject to the satisfaction or waiver
at or prior to the Closing of the following conditions: (i) the expiration
of the applicable waiting period (and any extension thereof) under the
Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended; (ii) the
absence of any laws, statutes, ordinances, rules, regulations, orders,
injunctions, judgments, decrees or bodies of law, being in effect which
prohibit the consummation of the transactions contemplated by the December
Stock Purchase Agreement; (iii) the approval by holders of the requisite
number of shares of Common Stock outstanding on the record date for a
special meeting of stockholders called by the Company (the "Special
Meeting") in accordance with the requirements of the DGCL and the rules of
the New York Stock Exchange (the "NYSE") and Pacific Exchange, Inc. (the
"PCX"), as applicable, of (x) the issuance of the Shares and the shares of
Common Stock issuable upon conversion of the Shares, (y) the issuance and
sale by the Company of 77,875 shares of Series A Preferred Stock and 77,875
shares of Series B Preferred Stock to other purchasers of such stock
pursuant to separate agreements between such other purchasers and the
Company (such other purchasers, the "Other Purchasers") and (z) the Company
Charter Amendment (as defined in the December Stock Purchase Agreement)
(the "Stockholder Approval"); (iv) the consummation by the Company of the
Senior Debt Refinancing (as defined in the December Stock Purchase
Agreement); (v) the making of any material foreign governmental and
regulatory filings, the giving of all material notices and the obtainment
of any material approvals, in each case, by the Company and/or the Limited
Partnerships that the Company and the Limited Partnerships reasonably agree
are required in connection with the consummation of the transactions
contemplated by the December Stock Purchase Agreement, the amendment and
restatement of the Governance Agreement (the "Amended and Restated
Governance Agreement"), and the amendment and restatement of the
Registration Rights Agreement (the "Amended and Restated Registration
Rights Agreement" and, together with the Amended and Restated Governance
Agreement, the "Related Agreements"); (vi) the approval for listing on the
NYSE and the PCX, subject to official notice of issuance, of the shares of
Common Stock issuable upon conversion of the Shares; and (vii) the receipt
by the Company of not less than $77,875,000 in aggregate gross proceeds
from simultaneous issuances of its Series A Preferred Stock and Series B
Preferred Stock to parties other than the Limited Partnerships on the terms
previously provided to the Limited Partnerships.
Conditions to Obligations of the Limited Partnerships
The obligations of the Limited Partnerships to consummate the
Closing are subject to the satisfaction or waiver at or prior to the
Closing of the following conditions: (i) all of the representations and
warranties of the Company set forth in the December Stock Purchase
Agreement must be true and correct, in each case as of the Signing Date and
as of the Shares Closing Date, as if made at and as of such time, except
(w) to the extent expressly made as of an earlier date, in which case as of
such date, (x) in the case certain representations and warranties, where
failure to be true and correct would not have a material adverse effect on
the financial condition, results of operations or business of the Company
and its Subsidiaries (as defined in the December Stock Purchase Agreement),
taken as a whole, other than (I) as a result of changes in general economic
or industry conditions or changes in applicable laws, rules or regulations,
(II) as disclosed in a schedule to the December Stock Purchase Agreement,
or (III) as a result of changes arising out of the announcement of the
transactions contemplated by the December Stock Purchase Agreement (a
"Material Adverse Effect"), (y) in the case of certain representations and
warranties which must be true and correct in all material respects and (z)
for changes specifically permitted by the December Stock Purchase
Agreement; (ii) the Company must have performed, satisfied and complied
with, in all material respects, all covenants and agreements set forth in
the December Stock Purchase Agreement required to be performed at or prior
to the Closing; (iii) the delivery by the Company to the Limited
Partnerships of a certificate signed by its chief executive officer, dated
the Shares Closing Date, to the effect that the conditions set forth in
clauses (i) and (ii) of this paragraph have been satisfied; (iv) the
execution and delivery by the Company of the Related Agreements, the
stockholders agreement, dated as of the Shares Closing Date, among the
Company and the Other Purchasers (the "Other Stockholders Agreement"), and
the registration rights agreement, dated as of the Shares Closing Date,
among the Company and the Other Purchasers of Series A Preferred Stock and
Series B Preferred Stock, and certain other deliveries pursuant to the
December Stock Purchase Agreement; (v) the filing by the Company of the
Certificate of Designations of the Series A Preferred Stock (the "Series A
Preferred Stock Certificate of Designations") and the Certificate of
Designations of the Series B Preferred Stock (the "Series B Preferred Stock
Certificate of Designations") with the Secretary of State of the State of
Delaware; (vi) the resignation from the Board, effective as of the Closing,
of one director of the Company; (vii) since June 30, 2002, there not having
occurred any change, event or development or series of changes, events or
developments which, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect; (viii) the
receipt by the Limited Partnerships of an opinion of counsel to the
Company; (ix) the receipt by the Limited Partnerships of certain other
deliveries including, without limitation, a certificate of the Company's
Chief Executive Officer and Chief Financial Officer certifying that the
transactions contemplated by December Stock Purchase Agreement do not
violate the terms of the Senior Debt Refinancing, and as to such officers'
good faith belief based on projections prepared by the Company believed to
be reasonable in good faith, that the Company will be able to satisfy the
financial covenants contained in the Senior Debt Refinancing documents, or
a similar certification reasonably acceptable to the Limited Partnerships;
and (x) the Company must not have amended, modified, waived, terminated or
otherwise altered in any material respect the provisions, terms or
conditions of any other agreements between the Company and any other Person
(as defined in the December Stock Purchase Agreement) with respect to an
investment in shares of Series A Preferred Stock and Series B Preferred
Stock and the rights and obligations incident thereto without the consent
of the Limited Partnerships.
Conditions to Obligations of the Company
The obligations of the Company to consummate the Closing are
subject to the satisfaction or waiver at or prior to the Closing of the
following conditions: (i) all of the representations and warranties of the
Limited Partnerships set forth in the December Stock Purchase Agreement
(other than those set forth in Sections 4.1, 4.2 and 4.8 of the December
Stock Purchase Agreement) must be true and correct in all material
respects, in each case as of the Signing Date and as of the Shares Closing
Date, as if made at and as of such time (except to the extent expressly
made as of an earlier date, in which case as of such date); (ii) the
representations and warranties of the Limited Partnerships set forth in
Sections 4.1, 4.2 and 4.8 of the December Stock Purchase Agreement must be
true and correct in all respects, in each case as of the Signing Date and
as of the Shares Closing Date, as if made at and as of such time (except to
the extent expressly made as of an earlier date, in which case as of such
date); (iii) the Limited Partnerships must have performed, satisfied and
complied with, in all material respects, all covenants and agreements set
forth in the December Stock Purchase Agreement required to be performed by
any of them under the December Stock Purchase Agreement at or prior to
Closing; (iv) each of the Limited Partnerships must have delivered to the
Company a certificate signed by an authorized signatory thereof, dated the
Shares Closing Date, to the effect that the conditions set forth in clauses
(i), (ii) and (iii) of this paragraph have been satisfied; (v) the
execution and delivery by the Limited Partnerships of the Related
Agreements and certain other deliveries pursuant to the December Stock
Purchase Agreement; and (vi) the receipt by the Company of an opinion of
counsel to the Limited Partnerships.
Covenants
Payment of Fees and Expenses
On the Shares Closing Date, the Company will make a closing
payment to the Limited Partnerships in an aggregate amount equal $907,705
in cash for all of the Limited Partnerships, against receipt from the
Limited Partnerships of the aggregate purchase price for the Shares. The
Company has agreed to reimburse the Limited Partnerships, up to a maximum
of $500,000, for all of the reasonable, documented, out-of-pocket legal,
travel and accounting expenses incurred by the Limited Partnerships in
connection with the transactions contemplated by the December Stock
Purchase Agreement.
Proxy Statement; Stockholder Approval
Pursuant to the December Stock Purchase Agreement, the Company
will hold the Special Meeting to obtain the Stockholder Approval and, in
connection therewith, the Company will prepare a form of proxy statement
(the "Proxy Statement") to be mailed to the stockholders of the Company in
connection with the Special Meeting as soon as practicable after the
Signing Date and will use its reasonable efforts to, among other things,
(i) respond as promptly as practicable to any comments made by the SEC with
respect to the Proxy Statement and (ii) cause the definitive Proxy
Statement to be mailed to its stockholders at the earliest practicable date
following the clearance of the Proxy Statement by the SEC.
In addition, pursuant to the December Stock Purchase Agreement,
the Limited Partnerships agreed to vote or cause the Original Purchasers to
vote, at the Special Meeting, all of the shares of Common Stock
beneficially owned by the Original Purchasers in accordance with the
recommendations of the Board that the stockholders of the Company vote to
adopt and approve (i) the issuance of the Shares and the shares of Common
Stock issuable upon conversion of the Shares, (ii) the Company Charter
Amendment, and (iii) the adoption of the Hexcel Corporation 2003 Incentive
Stock Plan and amendments to certain of the Company's existing equity
incentive plans. The voting obligation described above is subject to the
satisfaction of the following conditions as of the date of any such
stockholder meeting: (a) the Board shall not have withdrawn or modified in
an adverse manner its recommendation of the transactions contemplated by
the December Stock Purchase Agreement; (b) the Company shall not be in
material breach of its obligations under the December Stock Purchase
Agreement; (c) there shall not have occurred a Material Adverse Effect
since June 30, 2002; (d) the Company shall have received an executed
commitment letter or entered into definitive agreements with respect to the
Senior Debt Refinancing and the commitment letter or definitive agreements
shall not have been withdrawn, waived, modified, terminated or otherwise
altered in a manner adverse to the Company at any time prior to the Special
Meeting and any adjournments thereof; and (e) the fairness opinion of
Houlihan Lokey Howard & Zukin Financial Advisors, Inc., financial advisor
to the Board ("Houlihan") shall not have been withdrawn or materially
adversely modified by Houlihan.
In addition, pursuant to the December Stock Purchase Agreement,
except as otherwise contemplated by the Pledge Agreements, the Limited
Partnerships will cause the Original Investors to not transfer, pledge,
hypothecate, sell or otherwise dispose of, or encumber, grant any proxy or
power of attorney over, any of the shares of Common Stock held by them, or
deposit any of their shares of Common Stock into a voting trust or enter
into a voting agreement, understanding or arrangement with respect to any
of such shares of Common Stock at any time prior to the Special Meeting and
any adjournments thereof.
No Solicitation
Pursuant to the December Stock Purchase Agreement, except to
satisfy the condition discussed in clause (vii) under the caption
"Conditions to Obligations of the Limited Partnerships and the Company"
above or except as consented to by the Limited Partnerships, the Company
and its Subsidiaries agreed not to, and the Company agreed to use its
reasonable best efforts to cause its officers, directors, employees,
financial advisors, consultants, attorneys, accountants and other agents
not to, directly or indirectly, solicit, initiate, encourage or facilitate
or take any action to solicit, initiate, encourage or facilitate the
submission or making of any offer or proposal for, or any indication of
interest in, any (i) direct or indirect acquisition or purchase of a
business or assets that constitute 20% or more of the net revenues, net
income or the assets of the Company and its Subsidiaries, taken as a whole,
(ii) direct or indirect acquisition or purchase of 20% or more of any class
of equity securities of the Company, (iii) tender offer or exchange offer
that if consummated would result in any Person beneficially owning 20% or
more of any class of equity securities of the Company, or (iv) merger,
consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction involving the Company, other than the
transactions contemplated by the December Stock Purchase Agreement and the
Other December Stock Purchase Agreement (any such offer, proposal or
indication of interest, an "Alternate Proposal") or any inquiry with
respect thereto or engage in discussions or negotiations with any Person
with respect thereto, or, in connection with any Alternate Proposal or
potential Alternate Proposal, disclose any nonpublic information relating
to it or its Subsidiaries or afford access to the properties, books or
records of it or its Subsidiaries to any Person that has made, or to such
party's knowledge, is considering making, any Alternate Proposal; provided,
however, that in the event that the Company receives an Alternate Proposal
that could reasonably be expected to result in a bona fide Alternate
Proposal, which does not contain any due diligence condition, on terms that
the Board of the Company determines in its good faith judgment (after
consultation with a financial advisor of nationally recognized reputation
and outside counsel) to be more favorable from a financial standpoint to
the Company's stockholders than the transactions contemplated by the
December Stock Purchase Agreement, taking into account any changes to the
transactions contemplated by the December Stock Purchase Agreement that
have been proposed by the Limited Partnerships in response to such proposal
that was not solicited by it after the Signing Date and which did not
otherwise result from a breach by the Company of this covenant (such
Alternate Proposal, a "Superior Proposal"), then (a) the Company or its
representatives may make such inquiries or conduct such discussions with
respect to such Alternate Proposal as the Board, after consultation with
outside counsel, may deem necessary to inform itself for the purpose of
exercising its fiduciary duties and (b) if the Board by a majority vote
determines in good faith (after receiving the advice of a financial adviser
of nationally recognized reputation) that such Alternate Proposal is
reasonably likely to result in a Superior Proposal, the Company and its
representatives may conduct such additional discussions or provide such
information as the Board may determine, but only if, (I) prior to such
additional discussions or such provision of information, the Board by a
majority vote determines in good faith, after consultation with outside
counsel, that the failure to take such action would reasonably be expected
to constitute a breach by it of its fiduciary duties to its stockholders
under applicable law and (II) prior to providing any such information, the
Company receives from such Person an executed agreement protecting the
confidentiality of the information to be provided.
Pursuant to the December Stock Purchase Agreement, the Company
agreed that the Board may not withdraw its recommendation of the
transactions contemplated by the December Stock Purchase Agreement or
approve or recommend, or cause the Company to enter into any agreement with
respect to, any Alternate Proposal; provided, that, notwithstanding the
foregoing, if the Board by a majority vote determines in good faith, after
consultation with outside counsel, that such withdrawal of recommendation
or approval or recommendation of a Superior Proposal or entering into an
agreement with respect to a Superior Proposal may reasonably be expected to
be required to satisfy its fiduciary duties, the Board may withdraw its
recommendation of the transactions contemplated by the December Stock
Purchase Agreement or approve or recommend a Superior Proposal, or cause
the Company to enter into an agreement with respect to a Superior Proposal,
but in each case only (i) after providing written notice to the Limited
Partnerships advising the Limited Partnerships that the Board has received
a Superior Proposal, specifying the material terms and conditions of such
Superior Proposal and identifying the person(s) making such Superior
Proposal (the "Notice of Superior Proposal") and (ii) if, within five
business days of the Limited Partnerships' receipt of the Notice of
Superior Proposal, the Limited Partnerships do not make an offer which the
Board by a majority vote determines in good faith (based on the advice of a
financial advisor of nationally recognized reputation) to be as favorable
to the Company's stockholders as such Superior Proposal; provided, however,
that the Board will not be entitled to withdraw its recommendation of the
transactions contemplated by the December Stock Purchase Agreement or cause
the Company to enter into any agreement with respect to a Superior Proposal
unless the December Stock Purchase Agreement has been or concurrently is
terminated by its terms.
Debt Refinancing
Pursuant to the December Stock Purchase Agreement, the Company
agreed to use its reasonable best efforts to consummate the Senior Debt
Refinancing prior to the Shares Closing Date.
Termination
The December Stock Purchase Agreement may be terminated at any
time prior to the Shares Closing Date:
(i) by the mutual written consent of each of the Limited
Partnerships and the Company;
(ii) by the Limited Partnerships or the Company: (a) if the
Closing has not occurred on or before May 30, 2003 (the "Expiration
Date") and the December Stock Purchase Agreement has not previously
been terminated; provided, that the right to terminate the December
Stock Purchase Agreement pursuant to this provision is not available
to any party whose failure to fulfill any obligation under the
December Stock Purchase Agreement was the cause of, or resulted in,
the failure of the Closing to occur on or before such date; (b) if any
Governmental Entity (as defined in the December Stock Purchase
Agreement) has issued an order, judgment, decree or ruling or taken
any other action, in each case permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by the December
Stock Purchase Agreement and such order, judgment, decree, ruling or
other action has become final and non-appealable; provided, that the
right to terminate the December Stock Purchase Agreement pursuant to
this provision is not available to any party whose failure to fulfill
any obligation under the December Stock Purchase Agreement was the
cause of, or resulted in, the issuance of such order, judgment, decree
or ruling; or (c) if, at the Special Meeting, the Stockholder Approval
is not obtained; provided, that the right to terminate the December
Stock Purchase Agreement pursuant to this provision is not be
available to any party whose failure to fulfill any obligation under
the December Stock Purchase Agreement was the cause of, or resulted
in, the failure to obtain the Stockholder Approval;
(iii) by the Company: (a) if the Company receives a Superior
Proposal and the Board has complied with the covenants contained in
the "No Solicitation" provision the December Stock Purchase Agreement;
or (b) if (1) the representations and warranties of any of the Limited
Partnerships set forth in the December Stock Purchase Agreement (other
than those set forth in Sections 4.1, 4.2 and 4.8 of the December
Stock Purchase Agreement) are not true and correct in all material
respects on and as of the Signing Date and on and as of the Shares
Closing Date as if made on such date (except to the extent expressly
made as of an earlier date, in which case as of such earlier date),
(2) the representations and warranties of any of the Limited
Partnerships set forth in Sections 4.1, 4.2 and 4.8 of the December
Stock Purchase Agreement are not true and correct in all material
respects on and as of the Signing Date and on and as of the Shares
Closing Date, as if made at and as of such time (except to the extent
expressly made as of an earlier date, in which case as of such date)
or (3) any of the Limited Partnerships has breached or failed in any
material respect to perform or comply with any material obligation,
agreement or covenant required by the December Stock Purchase
Agreement to be performed or complied with by it, which inaccuracy or
breach is incapable of being cured prior to the Expiration Date; and
(iv) by the Limited Partnerships: (a) if the Board or any
committee thereof has withdrawn or modified, in a manner adverse to
the Limited Partnerships, its approval or recommendation of any of the
transactions contemplated by the December Stock Purchase Agreement;
(b) if (1) certain representations and warranties of the Company set
forth in the December Stock Purchase Agreement are not true and
correct on and as of the Signing Date and on and as of the date of
such determination as if made on such date (except to the extent
expressly made as of an earlier date, in which case as of such earlier
date), except where failure to be true and correct would not have a
Material Adverse Effect, (2) certain representations and warranties of
the Company set forth in the December Stock Purchase Agreement are not
true and correct in all material respects on and as of the Signing
Date and on and as of the Shares Closing Date, as if made at and as of
such time (except to the extent expressly made as of an earlier date,
in which case as of such date) or (3) the Company has breached or
failed in any material respect to perform or comply with any material
obligation, agreement or covenant required by the December Stock
Purchase Agreement to be performed or complied with by it, which
inaccuracy or breach cannot be cured or has not been cured prior to
the Expiration Date; or (c) if any change, event or development or
series of changes, events or developments, individually or in the
aggregate, has had a Material Adverse Effect subsequent to the Signing
Date and which Material Adverse Effect is incapable of being cured
prior to the Expiration Date, provided, that the right to terminate
the December Stock Purchase Agreement pursuant to this provision is
not available to any party whose failure to fulfill any obligation
under the December Stock Purchase Agreement has been the cause of, or
resulted in, such change, event or development.
Termination of the December Stock Purchase Agreement will
terminate all obligations and liabilities of the Company and the Limited
Partnerships under the December Stock Purchase Agreement except for certain
liabilities and obligations, including liabilities for breach by any party
thereunder and obligations or liabilities for the payment of fees and
expenses and for indemnification.
Indemnification
Pursuant to the December Stock Purchase Agreement, the Company
agreed to indemnify the Limited Partnerships, their Affiliates (as defined
in the December Stock Purchase Agreement), and their respective officers,
directors, partners, members, employees, agents, representatives,
successors and assigns (collectively, the "Investor Indemnified Persons")
from and against all Losses (as defined in the December Stock Purchase
Agreement) incurred or suffered by an Investor Indemnified Person arising
from, relating to or as a result of (i) the breach of any of the
representations or warranties (which breach shall be determined without
regard to any materiality or Material Adverse Effect qualifications
contained in the representation and warranty giving rise to such claim for
indemnity), (ii) the breach of any covenants, obligations or agreements
made by the Company in the December Stock Purchase Agreement and (iii) any
actual or threatened Litigation (as defined in the December Stock Purchase
Agreement) against an Investor Indemnified Person by any Person (other than
an Investor Indemnified Person) in connection with (A) the transactions
contemplated by the December Stock Purchase Agreement or by the Related
Agreements, (B) the negotiation, execution, delivery and performance of the
December Stock Purchase Agreement or the Related Agreements or (C) any
actions taken (including, without limitation, the voting of, or failure to
vote of, shares of the Company's common stock as contemplated by the
December Stock Purchase Agreement) by any Investor Indemnified Person
pursuant to the December Stock Purchase Agreement or any Related Agreement
or in connection with the transactions contemplated by the December Stock
Purchase Agreement or any Related Agreement (whether or not the
transactions contemplated by the December Stock Purchase Agreement or any
Related Agreement are consummated); provided, however, that the Company
does not have any obligation to indemnify the Investor Indemnified Persons
to the extent such suit, action, claim or proceeding arises from a breach
of the December Stock Purchase Agreement by any Investor Indemnified Person
or a failure of any representation or warranty of the Limited Partnerships
set forth in the December Stock Purchase Agreement to be true and correct
and such breach or failure of a representation or warranty to be true and
correct results in any condition to the Company's obligation to close being
incapable of being satisfied prior to May 30, 2003. Each Limited
Partnership, solely on behalf of itself, separately and not jointly, agreed
to indemnify the Company, its Affiliates, and their respective officers,
directors, partners, members, employees, agents, representatives,
successors and assigns (collectively, the "Company Indemnified Persons")
from and against all Losses incurred or suffered by a Company Indemnified
Person arising from, relating to or as a result of (i) the breach of any of
the representations or warranties, and (ii) the breach of covenants,
obligations or agreements made by the Limited Partnerships in the December
Stock Purchase Agreement. No claim may be made against the Company for
indemnification with respect to breaches of representations and warranties
with respect to any Losses unless the aggregate amount of Losses incurred
by the Investor Indemnified Persons exceeds $2,000,000, and the Company
will then only be liable for the amount of such Losses which exceed
$2,000,000. The maximum amount recoverable by the Investor Indemnified
Persons with respect to breaches of representations and warranties made by
the Company under the December Stock Purchase Agreement is $10,000,000,
except for breaches of a representation and warranty related to Securities
and Exchange Commission reports where the maximum amount recoverable is
$47,125,000. No claim may be made against the Limited Partnerships for
indemnification with respect to breaches of representations and warranties
with respect to any Losses unless the aggregate amount of Losses incurred
by the Company Indemnified Persons exceeds $2,000,000, and the Limited
Partnerships will then only be liable for the amount of such Losses which
exceed $2,000,000. The maximum amount recoverable by all Company
Indemnified Persons in the aggregate with respect to breaches of
representations and warranties made by the Limited Partnerships under the
December Stock Purchase Agreement is $10,000,000 in the aggregate for all
of the Limited Partnerships.
The foregoing description of the December Stock Purchase
Agreement is not intended to be complete and is qualified in its entirety
by the complete text of the December Stock Purchase Agreement, which is
filed as Exhibit 26 hereto and is incorporated herein by reference.
Amended and Restated Governance Agreement
-----------------------------------------
In connection with the consummation of the transactions
contemplated by the December Stock Purchase Agreement, at the Closing, the
Limited Partnerships, the Original Purchasers and the Company will enter
into the Amended and Restated Governance Agreement, which will amend and
restate the Governance Agreement.
Defined Terms
As used in the Amended and Restated Governance Agreement:
The term "Conversion Shares" means, at any time, those shares of
Common Stock issuable upon conversion of the Preferred Stock (as equitably
adjusted to reflect any stock split, combination, reorganization,
recapitalization, reclassification or other similar event involving the
Common Stock).
The term "Disinterested Director" means, with respect to any
Buyout Transaction, a director of the Company who is not an interested
director (within the meaning of Section 144 of the DGCL) with respect to
such Buyout Transaction, it being understood that no director designated by
the Limited Partnerships, the Original Purchasers and certain of their
Affiliates (as defined in the Amended and Restated Governance Agreement)
(collectively, the "GS Investors") will be deemed to be not interested with
respect to any Investor Buyout Transaction.
The term "Independent Director" means a director of the Company
who is not (x) a person designated by the GS Investors to serve as a member
of the Board or (y) a person designated by the Other Purchasers and certain
of their affiliates (the "Other Investors") to serve as a member of the
Board and who (i) is not and has never been an officer, employee, partner
or director of any of the GS Investors, the Other Investors or their
respective Affiliates or associates (as defined in Rule 12b-2 under the
Exchange Act) (in each case other than the Company) and (ii) has no
affiliation or compensation, consulting or contractual relationship with
any of the GS Investors, the Other Investors or their respective Affiliates
or associates (in each case other than the Company) such that a reasonable
person would regard such director as likely to be unduly influenced by any
of such persons or any of their Affiliates or associates (in each case
other than the Company).
The term "Investor Buyout Transaction" means a Buyout Transaction
by the GS Investors or their Affiliates or any other Person (as defined in
the Amended and Restated Governance Agreement) acting on behalf of the GS
Investors or their Affiliates, or any Person who is part of a Group with
the Investors, involving the acquisition of all (but not less than all) of
the Voting Securities held by the Other Holders, provided that all Other
Holders are entitled to receive Requisite Consideration upon consummation
of such Buyout Transaction.
The term "Other Holders" means the holders of Voting Securities
not Beneficially Owned (as defined in the Amended and Restated Governance
Agreement) by any of the GS Investors.
The term "Third Party Offer" means a bona fide offer to enter
into a Buyout Transaction by a Person other than any of the GS Investors or
any of their respective Affiliates, any other Person acting on behalf of
any of the GS Investors or any of their respective Affiliates, or any
Person who is part of a Group with any of the GS Investors or any of their
respective Affiliates, that does not treat the GS Investors or their
respective Affiliates differently than the Other Holders.
The term "Total Voting Power of Hexcel" means the total number of
votes that may be cast in the election of directors of the Company if all
Voting Securities (as defined below) outstanding or treated as outstanding
pursuant to the final two sentences of this definition were present and
voted at a meeting held for such purpose. The percentage of the Total
Voting Power of Hexcel Beneficially Owned by any Person is the percentage
of the Total Voting Power of Hexcel that is represented by the total number
of votes that may be cast in the election of directors of the Company by
Voting Securities Beneficially Owned by such Person. In calculating such
percentage, each share of Preferred Stock will be outstanding or will be
treated as outstanding for all purposes of the Amended and Restated
Governance Agreement without regard to the Person holding such share until
such time as such share of Preferred Stock is redeemed or repurchased by
the Company or converted into Common Stock in accordance with the Series A
Preferred Stock Certificate of Designations or the Series B Preferred Stock
Certificate of Designations, as applicable. In calculating such percentage,
the Voting Securities Beneficially Owned by any Person that are not
outstanding but are subject to issuance upon exercise or exchange of rights
of conversion or any options, warrants or other rights Beneficially Owned
by such Person shall be deemed to be outstanding for the purpose of
computing the percentage of the Total Voting Power of Hexcel represented by
Voting Securities Beneficially Owned by such Person, but shall not be
deemed to be outstanding for the purpose of computing the percentage of the
Total Voting Power of Hexcel represented by Voting Securities Beneficially
Owned by any other Person.
The term "Voting Securities" means the Common Stock, the
Preferred Stock and any other securities of the Company or any of its
subsidiaries entitled to vote generally in the election of directors of the
Company or such subsidiary.
Board Representation; Voting Rights
For so long as the GS Investors Beneficially Own 20% or more of
the Total Voting Power of Hexcel, the Company and the GS Investors will
exercise all authority under applicable law to cause any Board Slate to
consist of such nominees that, if elected, would result in the Board
consisting of two directors designated by GS Capital, one director
designated by LXH II and seven directors (including at least five
Independent Directors), each of whom is not a person designated by the GS
Investors to serve as a member of the Board and who is not and has never
been an officer, employee, partner or director of any of the GS Investors
or their Affiliates or associates (in each case other than the Company) and
has no affiliation or compensation, consulting or contractual relationship
with any of the GS Investors or their Affiliates or associates (in each
case other than the Company) such that a reasonable person would regard
such director as likely to be unduly influence by any of such persons or
any of their Affiliates or associates (in each case other than the Company)
(each, a "Non-Investor Director"); provided, however, that if the GS
Investors, directly or indirectly, during the term of the Amended and
Restated Governance Agreement, sell, transfer or otherwise dispose of, on a
cumulative basis, Beneficial Ownership of shares of Common Stock and/or
Preferred Stock together representing 33 1/3% or more of the Total Voting
Power of Hexcel represented by the aggregate number of (i) Initial Shares,
(ii) Shares and (iii) Conversion Shares (the Shares and Conversion Shares,
collectively, the "New Goldman Shares") as of the Shares Closing Date to
persons that are not GS Investors, then the Company and the GS Investors
will exercise all authority under applicable law to cause any Board Slate
to consist of such nominees that, if elected, would result in the Board
consisting of one director designated by GS Capital, one director
designated by LXH II and eight Non-Investor Directors (including at least
six Independent Directors).
For so long as the GS Investors Beneficially Own less than 20%
but at least 15% of the Total Voting Power of Hexcel, the Company and the
GS Investors will exercise all authority under applicable law to cause any
Board Slate to consist of such nominees that, if elected, would result in
the Board consisting of one director designated by GS Capital, one director
designated by LXH II and eight Non-Investor Directors (including at least
six Independent Directors); provided, however, that if the GS Investors,
directly or indirectly, during the term of the Amended and Restated
Governance Agreement, sell, transfer or otherwise dispose of, on a
cumulative basis, Beneficial Ownership of shares of Common Stock and/or
Preferred Stock together representing 66 2/3% of the Total Voting Power of
Hexcel represented by the aggregate number of Initial Shares and New
Goldman Shares as of the Shares Closing Date to persons that are not GS
Investors, then the Company and the GS Investors will exercise all
authority under applicable law to cause any Board Slate to consist of such
nominees that, if elected, would result in the Board consisting of one
director designated by GS Capital and nine Non-Investor Directors
(including at least seven Independent Directors).
For so long as the GS Investors Beneficially Own less than 15%
but at least 10% of the Total Voting Power of Hexcel, the Company and the
GS Investors will exercise all authority under applicable law to cause any
Board Slate to consist of such nominees that, if elected, would result in
the Board consisting of one director designated by GS Capital and nine
Non-Investor Directors (including at least seven Independent Directors).
In order to determine (i) the number of directors that the GS
Investors may designate to any Board Slate and (ii) the percentage of the
Total Voting Power of Hexcel Beneficially Owned by the GS Investors for
purposes of the provisions in the Amended and Restated Governance Agreement
described below under the heading "Approval Rights," the GS Investors will
be deemed to Beneficially Own a percentage of the Total Voting Power of
Hexcel that is no more than 39.3% of the Total Voting Power of Hexcel less
the percentage of the Total Voting Power of Hexcel represented by any
Voting Securities disposed of, directly or indirectly, by the GS Investors
to Persons that are not GS Investors.
The Company may increase the size of the Board through the
appointment of one or more additional independent directors (as such term
is used in the NYSE listing requirements) (each of which directors or
directors will be selected by a majority of the Independent Directors and
will be an Independent Director) in order to comply with any applicable
law, regulation or NYSE rule; provided, that, in the event of any such
change, the Company will use its commercially reasonable best efforts to
give the GS Investors the right to nominate, as nearly as possible, that
proportion of the directors as permitted by the terms of the Amended and
Restated Governance Agreement. Each of the GS Investors will perform any
and all actions as reasonably requested by the Company in order for the
Board to be changed pursuant to this paragraph.
For so long as the GS Investors are entitled to designate two or
more director nominees for election to the Board under the Amended and
Restated Governance Agreement, the finance, compensation, nominating, audit
and any other committee of the Board will consist of at least one director
designated by the GS Investors; provided, however, that if no director
designated by the GS Investors is eligible for membership on an
above-listed committee under the then-applicable listing standards of the
NYSE or any other applicable law, rule or regulation, then such committee
of the Board will include a director nominated by the GS Investors only
when so permitted by the listing standards of the NYSE or any other
applicable law, rule or regulation; provided, further, that the Company
will exercise all authority under applicable law, rule and regulation to
permit the inclusion of any director designated by the GS Investors on such
committee including, without limitation, causing an increase in the number
of directors on such committee. To the extent that directors designated by
the GS Investors are not eligible for membership on the finance,
compensation, nominating, audit or other committee of the Board, then the
GS Investors will be entitled to designate a representative to attend and
observe such committee meetings, provided that the observation is not
prohibited by applicable listing standards, laws, rules or regulations.
If, for any reason, any of the directors designated by the GS
Investors are not elected to the Board by stockholders of the Company, then
the Company will exercise all authority under applicable law to cause such
person or persons designated by the GS Investors to be elected to the
Board, and during any such absence of membership on the Board, the Company
agrees that it will permit a representative of the GS Investors to attend
all Board meetings (other than meetings solely of the Independent
Directors) and all committees thereof (to the extent any director
designated by the GS Investors would be entitled to attend such committee
meetings) as an observer.
If at any time the number of directors that the GS Investors are
entitled to designate decreases pursuant to the terms of the Amended and
Restated Governance Agreement, within 10 days thereafter the GS Investors
will cause a sufficient number of such directors to resign from the Board
so that the number of such directors on the Board after such resignation(s)
equals the number of directors that the GS Investors have the right to
designate. The GS Investors will also cause a sufficient number of
directors to resign from any relevant committees of the Board so that such
committees are comprised in the manner contemplated by the Amended and
Restated Governance Agreement after giving effect to such resignation(s).
Any vacancies created by these resignations will be filled by Independent
Directors.
Right to Maintain Level of Board Representation Upon Certain Issuances
If at any time the percentage of the Total Voting Power of Hexcel
Beneficially Owned by the GS Investors decreases as a result of an issuance
of Voting Securities by the Company (other than certain issuances described
in the Amended and Restated Governance Agreement), the GS Investors may
notify the Company that the GS Investors intend to acquire a sufficient
amount of additional Voting Securities necessary to maintain their then
current level of Board representation within 90 days. In such event, until
the end of such period, the Board will continue to have the number of
directors designated by the GS Investors that corresponds to the percentage
of the Total Voting Power of Hexcel Beneficially Owned by the GS Investors
prior to any such issuance of Voting Securities by the Company.
Approval Rights
Pursuant to the Amended and Restated Governance Agreement, the
Board will not authorize, approve or ratify any of the following actions
without the approval of a majority of the directors designated by the GS
Investors for so long as and at any time the GS Investors Beneficially Own
15% or more of the Total Voting Power of Hexcel (and, if the GS Investors
percentage Beneficial Ownership of the Total Voting Power of Hexcel is
reduced below 15% by an issuance of Voting Securities by the Company, no
such authorization, approval, or ratification will be given by the Board
without the approval of a majority of the directors designated by the GS
Investors (x) until 10 business days after the Company notifies the GS
Investors in writing of such issuance, and (y) if the GS Investors will
have notified the Company within 10 business days after their receipt of a
written notification of such issuance that the GS Investors, pursuant to
the Amended and Restated Governance Agreement, intend to acquire a
sufficient amount of Voting Securities within the 90-day period referred to
therein (as described above in "Right to Maintain Level of Board
Representation Upon Certain Issuances), so that the GS Investors will
Beneficially Own at least 15% of the Total Voting Power of Hexcel by the
end of such 90-day period, during the 90-day period following an issuance
of Voting Securities by the Company that causes the GS Investors to
Beneficially Own less than 15% of the Total Voting Power of Hexcel):
(i) any merger, consolidation, acquisition or other business
combination involving the Company or any subsidiary of the Company
(other than a Buyout Transaction) if the value of the consideration to
be paid or received by the Company and/or its stockholders in any such
individual transaction or in such transaction when added to the
aggregate value of the consideration paid or received by the Company
and/or its stockholders in all other such transactions approved by the
Board during the immediately preceding 12 months exceeds the greater
of (x) $75 million or (y) 11% of the Company's total consolidated
assets;
(ii) any sale, transfer, assignment, conveyance, lease or other
disposition or any series of related dispositions of any assets,
business or operations of the Company or any of its subsidiaries
(other than a Buyout Transaction) if the value of the assets, business
or operations so disposed during the immediately preceding 12 months
exceeds the greater of (x) $75 million or (y) 11% of the Company's
total consolidated assets; or
(iii) any issuance by the Company or any Significant Subsidiary
of the Company of equity or equity-related securities (other than (1)
pursuant to customary employee or director stock option or incentive
compensation or similar plans approved by the Board or a duly
authorized committee of the Board, (2) pursuant to transactions solely
among the Company and its wholly owned subsidiaries, (3) upon
conversion of convertible securities or upon exercise of warrants or
options, which convertible securities, warrants or options are either
outstanding on the Shares Closing Date or approved by the Board or a
duly authorized committee of the Board after the Shares Closing Date,
or (4) in connection with any mergers, consolidations, acquisitions or
other business combinations involving the Company or any subsidiary of
the Company which are approved by the Board or a duly authorized
committee of the Board) for which the consideration received by the
Company for such transactions during the immediately preceding 12
months exceeds $25 million.
For so long as there are any directors appointed by the GS
Investors serving on the Board, the Board may not authorize, approve or
ratify any action, at a meeting of the Board, by written consent or
otherwise, without the approval of a minimum of six members of the Board,
of which at least two of such six members must be Independent Directors, or
in the event that the Board will consist of less than six members due to
vacancies on the Board, the approval of all members of the Board.
Solicitation and Voting of Shares
Pursuant to the Amended and Restated Governance Agreement, in any
election of directors or at any meeting of the stockholders of the Company
called expressly for the removal of directors, for so long as the Board
includes (and will include after any such removal) directors designated by
the GS Investors contemplated by the Amended and Restated Governance
Agreement, the GS Investors must be present for purposes of establishing a
quorum and will vote all their Voting Securities entitled to vote (1) in
favor of any nominee or director selected in accordance with the Amended
and Restated Governance Agreement, (2) in favor of any nominee or director
placed by the Company on the slate of directors presented to stockholders
for election to the Board in accordance with the terms of any other
stockholders agreement, existing on the Shares Closing Date, between the
Company and a holder or holders of Voting Securities, (3) against the
removal of any director designated in accordance with the Amended and
Restated Governance Agreement and (4) against the removal of any director
placed by the Company on the slate of directors presented to stockholders
for election to the Board and elected to the Board by stockholders in
accordance with the terms of any other stockholders agreement, existing on
the Shares Closing Date, between the Company and a holder or holders of
Voting Securities. Except as provided in the Amended and Restated
Governance Agreement, the GS Investors will be free to vote in their sole
discretion all their Voting Securities entitled to vote on any other matter
submitted to or acted upon by stockholders; provided, however, that the GS
Investors must vote against any amendment to the Company's certificate of
incorporation with respect to the directors' and officers' indemnification
provisions contained therein which would adversely affect the rights
thereunder at any time prior to such vote of each of the individuals who at
any time were officers and directors of the Company (and their respective
heirs and personal and legal representatives), except for such
modifications as are required by applicable law
Restrictions on Company Action
Except with the prior written consent of the GS Investors, the
Company will not cause or permit any amendment, restatement, modification
or change to, or waiver of, any provision contained in any agreement (other
than customary employee or director stock option or incentive compensation
or similar plans approved by the Board or a duly authorized committee of
the Board) between a stockholder or stockholders and the Company that
provides such stockholder or stockholders (i) governance rights, board
representation rights, voting rights, transfer rights or restrictions or
any other similar rights relating to the Company and/or Voting Securities
held by such stockholder or stockholders or (ii) registration rights with
respect to Voting Securities held by such stockholder or stockholders.
Third Party Offers and Investor Buyout Transactions
Pursuant to the Amended and Restated Governance Agreement, in the
event that the Company becomes the subject of (i) a Third Party Offer or
(ii) an Investor Buyout Transaction that is made during the term of the
Amended and Restated Governance Agreement and such Third Party Offer or
Investor Buyout Transaction is approved by (x) a majority of the Board and
(y) a majority of Disinterested Directors, including the approval of at
least two Independent Directors, the GS Investors have the right to act at
their sole discretion with respect to such Third Party Offer or Investor
Buyout Transaction.
In the event that the Company becomes the subject of a Third
Party Offer that is made prior to the expiration of the eighteen-month
period commencing on the Shares Closing Date (such period, the "Standstill
Period") and such Third Party Offer is (i) not approved by a majority of
the Board or (ii) approved by a majority of the Board but not by a majority
of Disinterested Directors, including the approval of at least two
Independent Directors, none of the GS Investors nor any of their respective
Affiliates may, with respect to the New Goldman Shares, support such Third
Party Offer, vote in favor of such Third Party Offer or tender or sell
their New Goldman Shares to the person making such Third Party Offer.
In the event that the Company becomes the subject of a Third
Party Offer that is made prior to December 19, 2003 and such Third Party
Offer is (i) not approved by a majority of the Board or (ii) approved by a
majority of the Board but not by a majority of Disinterested Directors,
including the approval of at least two Independent Directors, none of the
GS Investors nor any of their respective Affiliates (other than with
respect to the Additional Shares) may support such Third Party Offer, vote
in favor of such Third Party Offer or tender or sell their Voting
Securities to the Person making such Third Party Offer.
In the event that the Company becomes the subject of a Third
Party Offer or an Investor Buyout Transaction that is made after the
Standstill Period and such Third Party Offer or Investor Buyout Transaction
is (i) not approved by a majority of the Board or (ii) approved by a
majority of the Board but not by a majority of Disinterested Directors,
including the approval of at least two Independent Directors, the GS
Investors and each of their Affiliates must vote all of their New Goldman
Shares against such Third Party Offer or Investor Buyout Transaction in
proportion to the votes cast against such Third Party Offer or Investor
Buyout Transaction with respect to the Other Shares and may not tender or
sell their New Goldman Shares to the person making such Third Party Offer
or Investor Buyout Transaction in a proportion greater than the tenders or
sales made by the Other Holders to the person making such Third Party Offer
or Investor Buyout Transaction.
In the event that the Company becomes the subject of a Third
Party Offer or an Investor Buyout Transaction that is made after December
19, 2003 and such Third Party Offer or Investor Buyout Transaction is (i)
not approved by a majority of the Board or (ii) approved by a majority of
the Board but not by a majority of Disinterested Directors, including the
approval of at least two Independent Directors, the GS Investors and each
of their Affiliates (other than with respect to the Ordinary Course Broker
Dealer Shares and the Additional Shares) must vote all of their Initial
Shares against such Third Party Offer or Investor Buyout Transaction in
proportion to the votes cast against such Third Party Offer or Investor
Buyout Transaction with respect to Other Shares and may not tender or sell
their Voting Securities to the Person making such Third Party Offer or
Investor Buyout Transaction in a proportion greater than the tenders or
sales made by the Other Holders to the Person making such Third Party Offer
or Investor Buyout Transaction.
Preemptive Rights
Pursuant to the Amended and Restated Governance Agreement, at any
time after the Shares Closing Date and for so long as the GS Investors are
entitled to designate one or more directors for election to the Board, if
the Company issues for cash any additional Voting Securities, then the
Company will notify the GS Investors of such issuance and the price and
terms thereof, and the GS Investors will have the option, for a period of
45 days after receipt of such notice, to purchase from the Company such
number of securities that would allow the GS Investors to Beneficially Own
the same percentage of the Total Voting Power of Hexcel as the GS Investors
Beneficially Owned immediately prior to such issuance for the same
consideration per security and on the same terms as were applicable to such
issuance by the Company.
Standstill Agreement
Except as otherwise expressly provided in the Amended and
Restated Governance Agreement or as specifically approved by a majority of
the Independent Directors, none of the GS Investors or any of their
Affiliates may, directly or indirectly, (i) by purchase or otherwise,
Beneficially Own, acquire, agree to acquire or offer to acquire any Voting
Securities or direct or indirect rights or options to acquire Voting
Securities (including any voting trust certificates representing such
securities) other than certain exceptions, (ii) enter, propose to enter
into, solicit or support any merger or business combination or similar
transaction involving the Company or any of its subsidiaries, or purchase,
acquire, propose to purchase or acquire or solicit or support the purchase
or acquisition of any portion of the business or assets of the Company or
any of its subsidiaries (except for proposals to purchase or acquire a
non-material portion of the assets of the Company or any of its
subsidiaries that are not required to be publicly disclosed), (iii)
initiate or propose any securityholder proposal without the approval of the
Board or make, or in any way participate in, any solicitation of proxies to
vote, or seek to advise or influence any person with respect to the voting
of, any Voting Securities or request or take any action to obtain any list
of securityholders for such purposes with respect to any matter other than
those upon which the GS Investors may vote in their sole discretion
pursuant to the terms of the Amended and Restated Governance Agreement (or,
as to such matters, solicit any person in a manner that would require the
filing of a proxy statement under Regulation 14A of the Exchange Act), (iv)
form, join or in any way participate in a Group (other than a Group
consisting solely of the GS Investors) formed for the purpose of acquiring,
holding, voting or disposing of or taking any other action with respect to
Voting Securities that would be required under Section 13(d) of the
Exchange Act to file a Statement on Schedule 13D with respect to such
Voting Securities, (v) deposit any Voting Securities in a voting trust or
enter into any voting agreement or arrangement with respect thereto (other
than the Amended and Restated Governance Agreement, the Pledge Agreements
and such voting trusts or agreements which are solely between the GS
Investors or made between the GS Investors and the Company pursuant to the
Amended and Restated Governance Agreement), (vi) seek representation on the
Board, the removal of any directors from the Board or a change in the size
or composition of the Board, (vii) make any request to amend or waive any
provision of the standstill provisions in the Amended and Restated
Governance Agreement, which request would require public disclosure under
applicable law, rule or regulation, (viii) disclose any intent, purpose,
plan, arrangement or proposal inconsistent with the foregoing (including
any such intent, purpose, plan, arrangement or proposal that is conditioned
on or would require the waiver, amendment, nullification or invalidation of
any of the foregoing) or take any action that would require public
disclosure of any such intent, purpose, plan, arrangement or proposal, (ix)
take any action challenging the validity or enforceability of the foregoing
or (x) assist, advise, encourage or negotiate with any person with respect
to, or seek to do, any of the foregoing.
Nothing in the Amended and Restated Governance Agreement (i)
prohibits or restricts the GS Investors from responding to any inquiries
from any shareholders of the Company as to the GS Investors' intention with
respect to the voting of any Voting Securities Beneficially Owned by the GS
Investors so long as such response is consistent with the terms of the
Amended and Restated Governance Agreement, (ii) restricts the right of any
director designated by the GS Investors on the Board or any committee
thereof to vote on any matter as such individual believes appropriate in
light of his or her duties as a director or committee member or the manner
in which such director may participate in his or her capacity as a director
in deliberations or discussions at meetings of the Board or as a member of
any committee thereof, (iii) prohibits the GS Investors from Beneficially
Owning Voting Securities issued as dividends or distributions in respect
of, or issued upon conversion, exchange or exercise of, securities which
the GS Investors are permitted to Beneficially Own under the Amended and
Restated Governance Agreement, (iv) prohibits any officer, director,
employee or agent of the GS Investors from purchasing or otherwise
acquiring Voting Securities so long as he or she is not a member of a Group
that includes the GS Investors or is not otherwise acting on behalf of the
GS Investors, (v) prohibits the GS Investors from disclosing in accordance
with their obligations, if any, under the federal securities laws or other
applicable law their desire, if any, that the Company become the subject of
a Buyout Transaction, or (vi) restricts the ability of Goldman Sachs and
its Affiliates who are not GS Investors, solely as agent, to engage in
brokerage, investment advisory, anti-raid advisory, merger advisory,
financing, asset management, trading, arbitrage and other similar
activities, in each case on behalf of clients.
Nothing in the Amended and Restated Governance Agreement
prohibits or restricts the GS Investors (i) after the Standstill Period,
from proposing, participating in, supporting or causing the consummation of
an Investor Buyout Transaction, subject to the voting requirements set
forth in the Amended and Restated Governance Agreement with respect to
Investor Buyout Transactions (as described above in "Third Party Offers and
Investor Buyout Transactions") or (ii) from participating in a Third Party
Offer in accordance with the voting requirements set forth in the Amended
and Restated Governance Agreement with respect to Third Party Offers (as
described above in "Third Party Offers and Investor Buyout Transactions").
Transfer Restrictions
Pursuant to the Amended and Restated Governance Agreement, other
than sales, transfers, or other dispositions (i) pursuant to the Series A
Preferred Stock Certificate of Designations, (ii) pursuant to the Series B
Preferred Stock Certificate of Designations or (iii) from one GS Investor
to another GS Investor and other than sales, transfers or other
dispositions of Additional Shares by persons holding such Additional
Shares, none of the GS Investors or their Affiliates, directly or
indirectly, may sell, transfer or otherwise dispose of Beneficial Ownership
of New Goldman Shares for a period of eighteen months after the Shares
Closing Date.
During the period commencing eighteen months after the Shares
Closing Date, the GS Investors, directly or indirectly, may only sell,
transfer or otherwise dispose of Beneficial Ownership of the New Goldman
Shares (i) to another GS Investor (provided that such GS Investor is a
signatory to the Amended and Restated Governance Agreement or has executed,
at the time of such sale, transfer or other disposition, a joinder in which
it agrees to be bound by the provisions of the Amended and Restated
Governance Agreement to the same extent as the GS Investors signatory
thereto), (ii) in accordance with Rule 144 under the Securities Act
(including the volume and manner-of-sale limitations of Rule 144 regardless
of whether such limitations are applicable) and otherwise subject to
compliance with the Securities Act, (iii) in a registered public offering,
(iv) in a transaction exempt from the registration requirements of the
Securities Act in a manner calculated to achieve a Broad Distribution (it
being understood that in connection with any registered offering under the
Securities Act to permit distribution to, and resale by, the limited
partners of, or other investors in, a Limited Partnership, such Limited
Partnership may distribute Preferred Shares to such limited partners and
such other investors), (v) in a Third Party Offer if and to the extent
otherwise permitted under the Amended and Restated Governance Agreement or
(vi) which are Additional Shares.
Except as contemplated by each of the Pledge Agreements, the GS
Investors, directly or indirectly, may only sell, transfer or otherwise
dispose of Beneficial Ownership of the Initial Shares (i) to another GS
Investor (provided that such GS Investor is a signatory to the Amended and
Restated Governance Agreement or has executed, at the time of such sale,
transfer or other disposition, a joinder in which it agrees to be bound by
the provisions of the Amended and Restated Governance Agreement to the same
extent as the GS Investors signatory thereto), (ii) in accordance with Rule
144 under the Securities Act and otherwise subject to compliance with the
Securities Act (provided, however, that prior to any sale, transfer or
other disposal of Initial Shares by a GS Investor pursuant to this clause
(ii), such GS Investor must deliver to the Company an executed certificate
stating that, to the knowledge, after due inquiry, of such GS Investor, the
proposed transfer of such Initial Shares (x) will not cause the transferee
to Beneficially Own 5% or more of the Total Voting Power of Hexcel and (y)
such transferee does not Beneficially Own 5% or more of the Total Voting
Power of Hexcel), (iii) in a registered public offering, (iv) in a
transaction exempt from the registration requirements of the Securities Act
in a manner calculated to achieve a Broad Distribution, (it being
understood that in connection with any registered offering under the
Securities Act to permit distribution to, and resale by, the limited
partners of, or other investors in, a Limited Partnership, such Limited
Partnership may distribute Initial Shares to such limited partners and such
other investors), (v) in a Third Party Offer if and to the extent permitted
under the Amended and Restated Governance Agreement or (vi) which are
Additional Shares.
None of the GS Investors or their Affiliates may acquire, sell,
transfer or otherwise dispose of Beneficial Ownership of Voting Securities
if such acquisition, sale, transfer or other disposition would result in a
default or acceleration of amounts outstanding under the Debt Instruments,
unless prior to the consummation of such acquisition, sale, transfer or
other disposition, any consents under the Debt Instruments required to
effect such acquisition, sale, transfer or disposition are obtained.
The foregoing description of the Amended and Restated Governance
Agreement is not intended to be complete and is qualified in its entirety
by the complete text of the Amended and Restated Governance Agreement, the
form of which is filed as Exhibit 27 hereto and is incorporated herein by
reference.
Item 4 is hereby further amended by adding the following at the end thereof:
Except as described above or otherwise described in this Schedule
13D, the Filing Persons currently have no plans or proposals which relate
to or would result in any transaction, event or action enumerated in
paragraphs (a) through (j) of Item 4 of the form of Schedule 13D
promulgated under the Act.
Each of the Filing Persons reserves the right, in light of its
ongoing evaluation of the Company's financial condition, business,
operations and prospects, the market price of the Common Stock, conditions
in the securities markets generally, general economic and industry
conditions, its business objectives and other relevant factors, to change
its plans and intentions at any time, as it deems appropriate. In
particular, any one or more of the Filing Persons (and their respective
affiliates) reserves the right, in each case subject to (a) the
restrictions contained in the Governance Agreement, the Notes, the Pledge
Agreements and the December Stock Purchase Agreement and (b) any applicable
limitations imposed on the sale of any of their Company securities by the
Securities Act or other applicable law, to (i) purchase additional shares
of Common Stock or other securities of the Company, (ii) sell or transfer
shares of Common Stock beneficially owned by them from time to time in
public or private transactions, and (iii) cause any of the Limited
Partnerships to distribute in kind to their respective partners or members,
as the case may be, shares of Common Stock or other securities owned by
such Limited Partnerships. To the knowledge of each Filing Person, each of
the persons listed on Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii,
II-C-i, II-C-ii, II-D-i or II-D-ii hereto may make similar evaluations from
time to time or on an ongoing basis.
Except as described in this Schedule 13D and except for
arrangements between and among the Filing Persons, none of the Filing
Persons has any contracts, agreements, arrangements, understandings or
relationships with any other person or entity for the purpose of acquiring,
holding, voting or disposing of any shares of Common Stock or Preferred
Stock.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
-------------------------------------
Item 5 is hereby amended in its entirety as follows:
(a) Pursuant to a representation and warranty made by the Company
in the December Stock Purchase Agreement, as of December 13, 2002, there
were 38,419,559 shares of Common Stock outstanding. As of the date hereof,
none of the Filing Persons beneficially owns any of the Shares, as the
acquisition of the Shares and the consummation of the other transactions
contemplated by the December Stock Purchase Agreement are subject to the
satisfaction of certain conditions including, without limitation, the
Company obtaining the Stockholder Approval.
As of the Signing Date, GS Group may be deemed to beneficially
own an aggregate of 14,557,002 shares of Common Stock, consisting of (i)
14,525,000 shares of Common Stock that may be deemed to be beneficially
owned by the Original Purchasers, as described below, and (ii) (a) (I)
10,000 options granted to Mr. Mehra on December 19, 2000 pursuant to the
Hexcel Incentive Stock Plan, of which all of such options are currently
exercisable and convertible into 10,000 shares of Common Stock, (II) 2,000
options granted to Mr. Mehra on May 10, 2001 pursuant to the Hexcel
Incentive Stock Plan, of which two-thirds of such options are currently
exercisable and convertible into 1,334 shares of Common Stock and the
remaining one-third of such options will vest and become exercisable on May
10, 2003, (III) 8,000 options granted to Mr. Mehra on July 31, 2001
pursuant to the Hexcel Incentive Stock Plan, of which all of such options
are currently exercisable and convertible into 8,000 shares of Common Stock
and (IV) 2,000 options granted to Mr. Mehra on May 9, 2002 pursuant to the
Hexcel Incentive Stock Plan, of which one-third of such options is
currently exercisable and convertible into 667 shares of Common Stock, an
additional one-third of such options will vest and become exercisable on
May 9, 2003 and the remaining one-third of such options will vest and
become exercisable on May 9, 2004 (Sanjeev K. Mehra has an understanding
with GS Group pursuant to which he holds such options for the benefit of GS
Group), and (b) (I) 10,000 options granted to Mr. Sacerdote on December 19,
2000 pursuant to the Hexcel Incentive Stock Plan, of which all of such
options are currently exercisable and convertible into 10,000 shares of
Common Stock, (II) 2,000 options granted to Mr. Sacerdote on May 10, 2001
pursuant to the Hexcel Incentive Stock Plan, of which two-thirds of such
options are currently exercisable and convertible into 1,334 shares of
Common Stock and the remaining one-third of such options will vest and
become exercisable on May 10, 2003 and (III) 2,000 options granted to Mr.
Sacerdote on May 9, 2002 pursuant to the Hexcel Incentive Stock Plan, of
which one-third of such options is currently exercisable and convertible
into 667 shares of Common Stock and an additional one-third of such options
will vest and become exercisable on May 9, 2003 and the remaining one-third
of such options will vest and become exercisable on May 9, 2004 (Peter M.
Sacerdote has an understanding with GS Group pursuant to which he holds
such options for the benefit of GS Group), representing in the aggregate
approximately 37.9% of the outstanding shares of Common Stock.
As of the Signing Date, Goldman Sachs may be deemed to
beneficially own an aggregate of 14,525,000 shares of Common Stock,
consisting of 14,525,000 shares of Common Stock that may be deemed to be
beneficially owned by the Original Purchasers, as described below,
representing approximately 37.8% of the outstanding shares of Common Stock.
GS Group and Goldman Sachs disclaim beneficial ownership of the
shares of Common Stock beneficially owned by the Original Purchasers and
the Limited Partnerships to the extent that partnership or membership
interests, as the case may be, in the Limited Partnerships are held by
persons other than Goldman Sachs or its affiliates.
In accordance with Securities and Exchange Commission Release No.
34-39538 (January 12, 1998), this filing reflects the securities
beneficially owned by the investment banking division of GS Group and its
subsidiaries and affiliates (the "Investment Banking Division"). This
filing does not reflect securities, if any, beneficially owned by any other
operating unit of GS Group and its subsidiaries and affiliates. The
Investment Banking Division disclaims beneficial ownership of securities,
if any, beneficially owned by (i) any client accounts with respect to which
the Investment Banking Division or its employees have voting or investment
discretion, or both, and (ii) certain investment entities, of which the
Investment Banking Division is the general partner, managing general
partner or other manager, to the extent interests in such entities are held
by persons other than the Investment Banking Division.
As of the Signing Date, GS Advisors may be deemed to beneficially
own the aggregate of 11,278,155 shares of Common Stock that may be deemed
to be beneficially owned by GS Capital and GS Offshore, representing, in
the aggregate, approximately 29.4% of the outstanding shares of Common
Stock.
As of the Signing Date, each of GS oHG and GS GmbH may be deemed
to beneficially own the aggregate of 345,764 shares of Common Stock that
may be deemed to be beneficially owned by GS Germany, representing
approximately 0.9% of the outstanding shares of Common Stock.
As of the Signing Date, GS Employee 2000 may be deemed to
beneficially own the aggregate of 2,628,354 shares of Common Stock that may
be deemed to be beneficially owned by GS Employee, representing
approximately 6.8% of the outstanding shares of Common Stock.
As of the Signing Date, Stone 2000 may be deemed to beneficially
own the aggregate of 272,727 shares of Common Stock that may be deemed to
be beneficially owned by Stone Street, representing approximately 0.7% of
the outstanding shares of Common Stock.
As of the Signing Date, GS Capital may be deemed to beneficially
own the aggregate of 8,272,312 shares of Common Stock that may be deemed to
be beneficially owned by LXH representing approximately 21.5% of the
outstanding shares of Common Stock.
As of the Signing Date, GS Offshore may be deemed to beneficially
own the aggregate of 3,005,843 shares of Common Stock that may be deemed to
be beneficially owned by LXH II, representing approximately 7.8% of the
outstanding shares of Common Stock.
As of the Signing Date, LXH Corp. may be deemed to beneficially
own 221,325.7 shares of Common Stock, that also may be deemed to be
beneficially owned by LXH, LXH L.P. and GS Capital, representing
approximately 0.6% of the outstanding shares of Common Stock.
As of the Signing Date, LXH L.P. may be deemed to beneficially
own 257,299.2 shares of Common Stock, that also may be deemed to be
beneficially owned by LXH and GS Capital, representing approximately 0.7%
of the outstanding shares of Common Stock.
As of the Signing Date, LXH may be deemed to beneficially own
8,272,312 shares of Common Stock, representing approximately 21.5% of the
outstanding shares of Common Stock.
As of the Signing Date, LXH II may be deemed to beneficially own
6,252,688 shares of Common Stock, representing approximately 16.3% of the
outstanding shares of Common Stock.
None of the Filing Persons or, to their knowledge, the persons
listed on Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii, II-C-i, II-C-ii,
II-D-i or II-D-ii hereto, beneficially owns any shares of Common Stock
other than as set forth herein.
(b) Each Filing Person shares the power to vote or direct the
vote and to dispose or to direct the disposition of shares of Common Stock
beneficially owned by such Filing Person as indicated above.
(c) Except as described above, no transactions in the shares of
Common Stock were effected by the Filing Persons, or, to their knowledge,
any of the persons listed on Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii,
II-C-i, II-C-ii, II-D-i or II-D-ii hereto, during the past sixty days.
(d) Except for clients of Goldman Sachs who may have the right to
receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, any shares of Common Stock held in managed
accounts, no other person is known by any Filing Person to have the right
to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, any shares of Common Stock that will be
beneficially owned by any Filing Person after the Purchase.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
----------------------------------------
Item 6 is hereby amended by adding the following immediately before the
ultimate paragraph thereof:
The responses set forth in Items 3 and 4 of this Amendment No. 1
to the Schedule 13D are incorporated herein by reference in their entirety.
Amended and Restated Registration Rights Agreement
--------------------------------------------------
Pursuant to and in connection with the consummation of the
transactions contemplated by the December Stock Purchase Agreement, on the
Shares Closing Date, the Limited Partnerships, the Original Purchasers and
the Company will enter into the Amended and Restated Registration Rights
Agreement, which will amend and restate the terms of the Registration
Rights Agreement.
Defined Terms
The term "Holder" or "Holders" means any of the Limited
Partnerships and the Original Purchasers and any Person (as defined in the
Amended and Restated Registration Rights Agreement) who acquires and holds
Registrable Securities (as defined below) in accordance with the terms of
the Amended and Restated Governance Agreement.
The term "Registrable Securities" means (i) any shares of Common
Stock held by the Holders on the Shares Closing Date, (ii) any shares of
Common Stock issued or issuable, directly or indirectly, upon conversion or
redemption of shares of Series A Preferred Stock held by the Holders
(including, without limitation, in satisfaction of a Conversion Payment (as
defined below) or any payment of shares upon a redemption under the Series
A Preferred Stock Certificate of Designations), (iii) any shares of Common
Stock issued or issuable, directly or indirectly, upon conversion or
redemption of shares of Series B Preferred Stock held by the Holders
(including, without limitation, in satisfaction of any payment of shares
upon a redemption under the Series B Preferred Stock Certificate of
Designations), (iv) any shares of Common Stock issued or issuable, directly
or indirectly, in exchange for or with respect to the Common Stock
referenced in clause (i) above by way of stock dividend, stock split or
combination of shares or in connection with a reclassification,
recapitalization, merger, consolidation or other reorganization, (v) any
shares of Series A Preferred Stock held by the Holders; provided, however,
that the shares of Series A Preferred Stock will not be deemed to be
Registrable Securities until the date that is three years after the Shares
Closing Date, and (vi) any shares of Common Stock acquired by the Holders
from third parties after the Shares Closing Date for so long as such Holder
is an Affiliate of the Company. As to any particular Registrable
Securities, such securities cease to be Registrable Securities when (A) a
registration statement with respect to the sale of such securities has been
declared effective under the Securities Act and such securities have been
disposed of in accordance with such registration statement, or (B) such
securities have been sold (other than in a privately negotiated sale)
pursuant to Rule 144 (or any successor provision) under the Securities Act
and in compliance with the requirements of paragraphs (f) and (g) of Rule
144 (notwithstanding the provisions of paragraph (k) of such Rule).
The term "Total Voting Power" has the same meaning as "Total
Voting Power of Hexcel" as defined in the Amended and Restated Governance
Agreement.
Demand and Piggyback Registrations
Pursuant to the Amended and Restated Registration Rights
Agreement, the Company will grant to the Holders the right, subject to
certain limitations and restrictions: (i) to require the Company at the
request of the Holders (any such request, a "Demand Registration Request")
on three separate occasions to effect a registration of Registrable
Securities held by the Holders which represents 20% or greater of the Total
Voting Power of the then outstanding Registrable Securities (any such
requested registration, a "Demand Registration"); provided, however, that
no shares of Common Stock issued or issuable, directly or indirectly, upon
conversion of shares of Preferred Stock held by the Limited Partnerships
may be included in such request prior to the date that is eighteen months
after the Shares Closing Date; and (ii) to require the Company to include
Registrable Securities then held by the Holders in any other registration
by the Company of its equity securities under the Securities Act. Pursuant
to the Amended and Restated Registration Rights Agreement, the Company must
pay certain expenses of the Holders in connection with such registrations
as provided in the Amended and Restated Registration Rights Agreement.
Pursuant to the Amended and Restated Registration Rights
Agreement, the Demand Registration rights granted to the Holders pursuant
thereto are also subject to the following limitations: (i) the Company will
not be required to cause a Demand Registration to be declared effective
within a period of 180 days after the effective date of any other
registration statement of the Company filed pursuant to the Securities Act;
(ii) if the Board, in its good faith judgment, determines that any
registration of Registrable Securities should not be made or continued
because it would materially interfere with any material financing,
acquisition, corporate reorganization or merger or other transaction or
event involving the Company or any of its subsidiaries (a "Valid Business
Reason"), the Company may postpone filing a registration statement relating
to a Demand Registration Request until such Valid Business Reason no longer
exists, but in no event for more than three months (such period of
postponement or withdrawal, the "Postponement Period"); provided, however,
the Company will not be permitted to postpone or withdraw a registration
statement after the expiration of any Postponement Period until twelve
months after the expiration of such Postponement Period; and (iii) the
Company will not be required to effect a Demand Registration unless the
Registrable Securities to be included in such registration have an
aggregate anticipated offering price of at least $25,000,000 (based on the
then-current market price of the Registrable Securities).
The foregoing description of the Amended and Restated
Registration Rights Agreement is not intended to be complete and is
qualified in its entirety by the complete text of the Amended and Restated
Registration Rights Agreement, the form of which is filed as Exhibit 28
hereto and is incorporated herein by reference.
Series A Preferred Stock Certificate of Designations
----------------------------------------------------
Pursuant to and in connection with the consummation of the
transactions contemplated by the December Stock Purchase Agreement,
immediately prior to the Shares Closing Date, the Company will file the
Series A Preferred Stock Certificate of Designations with the Secretary of
State of the State of Delaware and issue to the Limited Partnerships Series
A Preferred Stock having the terms set forth in the Series A Preferred
Stock Certificate of Designations.
Rank
Pursuant to the Series A Preferred Stock Certificate of
Designations, the Series A Preferred Stock, with respect to dividend
distributions and distributions upon liquidation, winding-up and
dissolution, whether voluntary or involuntary, of the Company, ranks senior
to all Junior Stock (as defined in the Series A Preferred Stock Certificate
of Designations) and ranks on parity with all Parity Stock (as defined in
the Series A Preferred Stock Certificate of Designations) including the
Series B Preferred Stock.
Dividends
The Series A Preferred Stock Certificate of Designations provides
that, commencing on the Dividend Commencement Date (as defined below) the
holders of shares of Series A Preferred Stock are entitled to receive on
each Dividend Payment Date (as defined in the Series A Preferred Stock
Certificate of Designations) in respect of the Dividend Period (as defined
in the Series A Preferred Stock Certificate of Designations) ending on (and
including) the date immediately prior to such Dividend Payment Date
dividends on each share of Series A Preferred Stock at the rate of 6% per
annum on the Accrued Value (as defined below) thereof from the Dividend
Commencement Date until the earliest of (A) the date on which the
Liquidation Preference (as defined below) of such share of Series A
Preferred Stock is paid to the holder thereof in connection with the
Liquidation (as defined in the Series A Preferred Stock Certificate of
Designations) of the Company; (B) the date on which the Company redeems
such share of Series A Preferred Stock; (C) the date on which such share of
Series A Preferred Stock is converted into shares of Common Stock; (D) the
occurrence of a Mandatory Conversion Event (as defined below) and (E) the
date on which such share of Series A Preferred Stock is otherwise acquired
by the Company, provided that with respect to the Initial Dividend Period
(as defined in the Series A Preferred Stock Certificate of Designations),
the dividends set forth above must be prorated based on the number of days
in such period. Such dividends are fully cumulative and accumulate and
accrue on a daily basis (computed on the basis of a 360-day year of twelve
30-day months) and compound quarterly in arrears on the Dividend Payment
Dates at the rate indicated above, whether or not they have been declared
and whether or not there are profits, surplus or other funds of the Company
legally available for the payment of dividends. Such dividends may, at the
option of the Company, either be paid in cash or accrue and compound and be
added to the Accrued Value on the applicable Dividend Payment Dates,
provided, however, that all dividends payable on any given Dividend Payment
Date must either (i) all be paid in cash or (ii) all accrue and compound
and be added to the Accrued Value. "Dividend Commencement Date" is defined
in the Series A Preferred Stock Certificate of Designations as the third
anniversary of the original date of issuance of the Series A Preferred
Stock (the "Issuance Date"). "Accrued Value" is defined in the Series A
Preferred Stock Certificate of Designations as, with respect to a share of
Series A Preferred Stock, the sum of (i) $1,195.618 plus (ii) the aggregate
of all accrued but unpaid dividends (whether or not declared) on such share
which have been added to Accrued Value in accordance with the Series A
Preferred Stock Certificate of Designations.
In addition, in the event any dividends are declared or paid or
any other distribution is made on or with respect to the Common Stock, the
holders of the Series A Preferred Stock as of the record date established
by the Board for such dividend or distribution on the Common Stock are
entitled to receive as additional dividends (the "Additional Dividends") an
amount (whether in the form of cash, securities or other property) equal to
the amount (and in the form) of the dividends or distribution that such
holder would have received had the Series A Preferred Stock been converted
into Common Stock as of the date immediately prior to the record date of
such dividend or distribution on the Common Stock, provided, however, that
for the purposes of determining the number of shares of Common Stock into
which the Series A Preferred Stock is deemed to have been converted, the
Conversion Limitation (as defined below) is disregarded. Such Additional
Dividends are payable on the same payment date as the payment date for the
dividend on the Common Stock established by the Board; provided, however,
that if the Company declares and pays a dividend or makes a distribution on
the Common Stock consisting in whole or in part of Common Stock (or
options, rights, warrants or other securities convertible into or
exchangeable for Common Stock), then no such dividend or distribution is
payable in respect of the Series A Preferred Stock on account of the
portion of such dividend or distribution on the Common Stock payable in
Common Stock and in lieu thereof the applicable anti-dilution adjustment
set forth in the Series A Preferred Stock Certificate of Designations will
apply.
Voting Rights
Except as otherwise required by law or as provided in the Series
A Preferred Stock Certificate of Designations, the Series A Preferred Stock
Certificate of Designations provides that the holders of record of shares
of Series A Preferred Stock have full voting rights and powers, and are
entitled to vote on all matters put to a vote or consent of stockholders of
the Company, voting together with the holders of the Common Stock and
Series B Preferred Stock as a single class, with each holder of shares of
Series A Preferred Stock having the number of votes equal to the number of
shares of Common Stock into which such shares of Series A Preferred Stock
could be converted in accordance with the Series A Preferred Stock
Certificate of Designations as of the record date for the vote or consent
which is being taken.
In addition to any matters requiring a separate vote of the
Series A Preferred Stock under applicable law, the Company may not, without
the prior consent or approval of the holders of at least 70% of the issued
and outstanding shares of Series A Preferred Stock, voting as a single
class: (i) amend, alter, repeal or restate its certificate of
incorporation, its by-laws or the Series A Preferred Stock Certificate of
Designations (whether by reclassification, merger, consolidation,
reorganization or otherwise) in a manner that alters or changes, in any
adverse manner, the powers, preferences, privileges or rights of the Series
A Preferred Stock or which otherwise would adversely affect the rights,
privileges or preferences of the Series A Preferred Stock; or (ii)
authorize, issue or otherwise create any shares of Senior Stock, Parity
Stock or additional shares of Series A Preferred Stock.
Mandatory Redemption
The Series A Preferred Stock Certificate of Designations provides
that on January 22, 2010 (the "Mandatory Redemption Date"), the Company is
required to redeem (subject to the legal availability of funds therefor)
all remaining outstanding shares of Series A Preferred Stock for an amount
in cash per share equal to the Liquidation Preference of such share (the
"Mandatory Redemption Price"). "Liquidation Preference" is defined in the
Series A Preferred Stock Certificate of Designations as an amount equal to
the greater of (i) if measured prior to the Dividend Commencement Date,
$1,000 (as adjusted for any split, subdivision, combination, consolidation,
recapitalization or similar event with respect to the Series A Preferred
Stock) (the "Stated Value"), or, if measured on or following the Dividend
Commencement Date, the Adjusted Accrued Value (as defined below), of such
share and (ii) the amount that would be payable to a holder in respect of
Common Stock issuable upon conversion of a share of Series A Preferred
Stock if all outstanding shares of Series A Preferred Stock were converted
into Common Stock immediately prior to the Liquidation; provided, however,
that for the purposes of determining the number of shares of Common Stock
outstanding and the number of shares of Common Stock into which the Series
A Preferred Stock is deemed to have been converted, the Conversion
Limitation (as defined below) is disregarded (the amount in clause (ii)
being referred to as the "Participating Preference Amount"). "Adjusted
Accrued Value" is defined in the Series A Preferred Stock Certificate of
Designations as an amount per share of Series A Preferred Stock equal to
the sum of (i) the Stated Value plus (ii) an amount equal to the aggregate
of all accrued but unpaid dividends (whether or not declared) on such share
which have been added to Accrued Value plus (iii) an amount equal to all
accrued and unpaid dividends on such share which have not been added to
Accrued Value; provided, however, that solely for purposes of determining
the Liquidation Preference in a redemption upon a Change of Control (as
such term is defined in the Indenture governing the "Notes"), the Adjusted
Accrued Value component of Liquidation Preference means the product of (A)
the Adjusted Accrued Value and (B) 1.01. Notwithstanding the foregoing, if
the Mandatory Redemption Price of each share is equal to the Participating
Preference Amount rather than the Adjusted Accrued Value of such share, the
Company may pay all of the Mandatory Redemption Price in Common Stock
valued at the Closing Price (as defined in the Series A Preferred Stock
Certificate of Designations) of the Common Stock on the Business Day (as
defined in the Series A Preferred Stock Certificate of Designations)
immediately preceding the Mandatory Redemption Date; provided, however,
that each holder of shares to be redeemed may elect to receive the Adjusted
Accrued Value in cash, in lieu of a payment of the Participating Preference
Amount in Common Stock.
If, at the Mandatory Redemption Date, the Company does not have
sufficient capital and surplus legally available to redeem all the
outstanding shares of the Series A Preferred Stock, the Company must take
all measures permitted under the DGCL to increase the amount of its capital
and surplus legally available, and the Company must redeem as many shares
of the Series A Preferred Stock as it may legally redeem, ratably from the
holders thereof in proportion to the number of shares held by them, and
must thereafter from time to time, as soon as it has funds available
therefor, redeem as many shares of the Series A Preferred Stock as it
legally may until it has redeemed all of the outstanding shares of the
Series A Preferred Stock. Shares of the Series A Preferred Stock not
redeemed on the Mandatory Redemption Date will accrue dividends at a rate
equal to 10% per annum of the Accrued Value in the manner set forth in the
Series A Preferred Stock Certificate of Designations from the Mandatory
Redemption Date until such shares are redeemed by the Company in accordance
with the Series A Preferred Stock Certificate of Designations at the
Mandatory Redemption Price. If, and so long as, any Mandatory Redemption
Obligation (as defined in the Series A Preferred Stock Certificate of
Designations) with respect to shares of Series A Preferred Stock is not
fully discharged, the Company may not (i) directly or indirectly, redeem,
purchase or otherwise acquire any Parity Stock (other than in accordance
with the Series B Preferred Stock Certificate of Designations) or discharge
any mandatory or optional redemption, sinking fund or other similar
obligation in respect of any Parity Stock (other than in accordance with
the Series B Preferred Stock Certificate of Designations) (except in
connection with a redemption, sinking fund or other similar obligation to
be satisfied pro rata with the Series A Preferred Stock) or (ii) declare or
make any dividends (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Junior Stock) or other distribution declared or made upon Junior Stock, or
the redemption, repurchase or other acquisition of any Junior Stock
("Junior Stock Distribution") or, directly or indirectly, discharge any
mandatory or optional redemption, sinking fund or other similar obligation
in respect of any Junior Stock.
Redemption Upon a Change of Control
Pursuant to the Series A Preferred Stock Certificate of
Designations, in the event there occurs a Change of Control, the Company
must offer (subject to the legal availability of funds therefor) to
purchase from each holder all of the Series A Preferred Stock held by such
holder for an amount in cash equal to the Liquidation Preference of the
shares of Series A Preferred Stock held by the holder, by delivery of a
notice of such offer within ten Business Days following the Change of
Control. In the event of a Change of Control, each holder of Series A
Preferred Stock has the right (but not the obligation) to require the
Company to purchase any or all of the Series A Preferred Stock held by such
holder for an amount in cash equal to the Liquidation Preference of the
shares of Series A Preferred Stock held by such holder. Notwithstanding the
foregoing, if the redemption price of each share is equal to the
Participating Preference Amount rather than the Adjusted Accrued Value of
such share, the Company may pay all of such redemption price in Common
Stock valued at the Closing Price of the Common Stock on the Business Day
immediately preceding the redemption date; provided, however, that each
holder of shares to be redeemed may elect to receive the Adjusted Accrued
Value in cash, in lieu of a payment of the Participating Preference Amount
in Common Stock.
If upon the occurrence of a Change of Control, the Company does
not have sufficient capital and surplus legally available to redeem all the
outstanding shares of the Series A Preferred Stock the holders require that
the Company redeem, the Company must take all measures permitted under the
DGCL to increase the amount of its capital and surplus legally available,
and the Company must redeem as many shares of the Series A Preferred Stock
as it may legally redeem, ratably from the holders electing to have shares
redeemed in proportion to the number of shares held by them, and thereafter
from time to time, as soon as it has funds available, redeem as many shares
of the Series A Preferred Stock as it legally may until it has redeemed all
of the shares of the Series A Preferred Stock the holders require it to
redeem. Shares of the Series A Preferred Stock not redeemed upon receipt of
a Change of Control Redemption Request (as defined in the Series A
Preferred Stock Certificate of Designations) (including as described in the
subsequent paragraph) will accrue dividends at a rate equal to 10% per
annum of the Accrued Value from the date fixed by the Company for a Change
of Control Redemption (as defined in the Series A Preferred Stock
Certificate of Designations) until the shares are redeemed by the Company
in accordance with the terms of the Series A Preferred Stock Certificate of
Designations. If, and so long as, any Mandatory Redemption Obligation with
respect to shares of Series A Preferred Stock is not fully discharged, the
Company may not (i) directly or indirectly, redeem, purchase or otherwise
acquire any Parity Stock (other than in accordance with the Series B
Preferred Stock Certificate of Designations) or discharge any mandatory or
optional redemption, sinking fund or other similar obligation in respect of
any Parity Stock (other than in accordance with the Series B Preferred
Stock Certificate of Designations) (except in connection with a redemption,
sinking fund or other similar obligation to be satisfied pro rata with the
Series A Preferred Stock) or (ii) declare or make any Junior Stock
Distribution or, directly or indirectly, discharge any mandatory or
optional redemption, sinking fund or other similar obligation in respect of
any Junior Stock.
The Company is not required to effect a redemption pursuant to
this provision until the Notes have been repurchased or repaid or
permission for such redemption has been granted under the Notes.
Liquidation
Pursuant to the Series A Preferred Stock Certificate of
Designations, in the event of a Liquidation of the Company, each holder of
Series A Preferred Stock is entitled to receive out of assets of the
Company available for distribution to its stockholders, in preference to
any distribution to holders of Junior Stock including, without limitation,
Common Stock, an amount of cash with respect to each share of Series A
Preferred Stock held by such holder equal to the Liquidation Preference;
provided, however, that solely for the purposes of determining the number
of shares of Common Stock into which the Series A Preferred Stock is
convertible, the Conversion Limitation is disregarded; provided, further,
that, in the event of a Liquidation that occurs due to a voluntary or
involuntary case of the Company under Bankruptcy Law (as defined in the
Series A Preferred Stock Certificate of Designations), if the Liquidation
Preference with respect to each share of Series A Preferred Stock is equal
to the Participating Preference Amount, then each holder receives, out of
the assets of the Company available for distribution to stockholders, such
Liquidation Preference as follows: (x) in preference to any distribution to
holders of Junior Stock, an amount of cash with respect to each share of
Series A Preferred Stock held by such holder equal to the Adjusted Accrued
Value and (y) thereafter, the holders of Series A Preferred Stock will
share in all remaining assets of the Company, pari passu with the holders
of Common Stock (with the holders of the Series A Preferred Stock deemed to
hold that number of shares of Common Stock into which Series A Preferred
Stock with a Liquidation Preference equal to the Excess Amount could be
converted) until the holders of Series A Preferred Stock have received an
amount equal to the amount by which the Participating Preference Amount
exceeds the Adjusted Accrued Value (the "Excess Amount").
Optional Conversion
Pursuant to the Series A Preferred Stock Certificate of
Designations, each share of Series A Preferred Stock may, at the option of
the holder thereof, be converted into Common Stock at any time. Each share
of Series A Preferred Stock is convertible into a number of fully paid and
nonassessable shares of Common Stock equal to the quotient obtained by
dividing (x) the Stated Value by (y) $3.00 (as adjusted for any split,
subdivision, combination, consolidation or reclassification of the Common
Stock) (the "Initial Conversion Price"), subject to adjustment as provided
in the Series A Preferred Stock Certificate of Designations (the
"Conversion Price"); provided, however, that in no event shall shares of
Series A Preferred Stock be convertible into Common Stock to the extent,
and at any time that (i) such conversion would cause the holder thereof
(together with its affiliates) to have beneficial ownership (which shall
have the meaning as used in Rules 13d-3 and 13d-5 promulgated under the
Exchange Act, except that for the purposes of this section of the Series A
Preferred Stock Certificate of Designations, such meaning includes the
right to acquire securities, whether or not such right is exercisable
immediately) of more than 39.9% of the voting power of the Company's
outstanding voting stock and (ii) the Notes are outstanding and beneficial
ownership by any holder or group of holders of at least 40% of the voting
power of the Company's outstanding voting stock would constitute a "change
of control" thereunder (the "Conversion Limitation"); provided, further,
any shares of Series A Preferred Stock that are not convertible at any time
due to the Conversion Limitation will remain outstanding and entitled to
all of the rights and privileges contained in the Series A Preferred Stock
Certificate of Designations.
Mandatory Conversion
Pursuant to the Series A Preferred Stock Certificate of
Designations, each share of Series A Preferred Stock, immediately upon the
occurrence of a Mandatory Conversion Event, automatically converts into
fully paid and non-assessable shares of Common Stock. The number of shares
of Common Stock to which a holder of Series A Preferred Stock is entitled
upon such automatic conversion is determined by dividing (x) the Stated
Value by (y) the Conversion Price in effect at the close of business on the
Business Day immediately preceding such date; provided, however, that in no
event shall shares of Series A Preferred Stock be converted into Common
Stock to the extent, and at any time, the Conversion Limitation is
applicable, and provided, further, that any shares of Series A Preferred
Stock that are not convertible at any time due to the Conversion Limitation
will remain outstanding and entitled to all of the rights and privileges
contained in the Series A Preferred Stock Certificate of Designations. Any
holder's shares of Series A Preferred Stock not convertible due to the
Conversion Limitation will, immediately upon such time as the Conversion
Limitation is no longer applicable to such holder, automatically convert
into fully-paid and non-assessable shares of Common Stock. Pursuant to the
Series A Preferred Stock Certificate of Designations, a "Mandatory
Conversion Event" occurs if the Closing Price per share of Common Stock
over any sixty consecutive Trading Days (as defined in the Series A
Preferred Stock Certificate of Designations) exceeds an amount per share
equal to 300% of the Initial Conversion Price, provided that the 60th
consecutive Trading Day is a date that is later than the three year
anniversary of the Issuance Date.
Payment Upon Conversion
Pursuant to the Series A Preferred Stock Certificate of
Designations, upon an optional conversion of a share of Series A Preferred
Stock, the holder of such share is entitled to receive an amount equal to
such share's Conversion Payment. Any Conversion Payment may be paid by the
Company (i) all in cash or (ii) all in shares of Common Stock, provided
that (A) if the Company is paying in shares of Common Stock at its option,
such shares of Common Stock are valued at 90% of the Closing Price on the
date of such conversion and (B) if the Company is paying in shares of
Common Stock because it does not have available sufficient capital, surplus
or other funds available to pay, or is restricted by its Debt Instruments
(as defined in the Series A Preferred Stock Certificate of Designations)
from paying, such Conversion Payment in cash, the shares of Common Stock
are valued at 95% of the Closing Price on the date of such conversion.
Pursuant to the Series A Preferred Stock Certificate of Designations,
"Conversion Payment" means (i) an amount equal to the aggregate of all
accrued but unpaid dividends (whether or not declared) on such share which
have been added to Accrued Value prior to the occurrence of a Dividend
Accrual Event plus (ii) an amount equal to all accrued and unpaid dividends
on such share which have not been added to Accrued Value prior to the
occurrence of a Dividend Accrual Event. Pursuant to the Series A Preferred
Stock Certificate of Designations, a "Dividend Accrual Event" occurs if the
Closing Price per share of Common Stock over any sixty (60) consecutive
Trading Days exceeds an amount per share equal to 200% of the Initial
Conversion Price; provided that the 60th consecutive Trading Day is a date
that is later than the three year anniversary of the Issuance Date.
Pursuant to the Series A Preferred Stock Certificate of
Designations, upon a mandatory conversion of a share of Series A Preferred
Stock, the holder of such share is entitled to receive an amount all in
cash equal to such share's Conversion Payment.
The Series A Preferred Stock Certificate of Designations also
contains customary anti-dilution protection for the shares of Series A
Preferred Stock.
Series B Preferred Stock Certificate of Designations
----------------------------------------------------
Pursuant to and in connection with the consummation of the
transactions contemplated by the December Stock Purchase Agreement,
immediately prior to the Shares Closing Date, the Company will file the
Series B Preferred Stock Certificate of Designations with the Secretary of
State of the State of Delaware and issue to the Limited Partnerships Series
B Preferred Stock having the terms set forth in the Series B Preferred
Stock Certificate of Designations.
Rank
Pursuant to the Series B Preferred Stock Certificate of
Designations, the Series B Preferred Stock, (i) with respect to
Participating Dividends (as defined below) ranks pari passu with all Junior
Stock (as defined in the Series B Preferred Stock Certificate of
Designations) and (ii) with respect to distributions upon liquidation,
winding-up and dissolution, whether voluntary or involuntary, of the
Company, ranks senior to all Junior Stock and ranks on parity with all
Parity Stock (as defined in the Series B Preferred Stock Certificate of
Designations) including the Series A Preferred Stock.
Dividends
The Series B Preferred Stock Certificate of Designations provides
that, in the event any dividends are declared or paid or any other
distribution is made on or with respect to the Common Stock, the holders of
the Series B Preferred Stock as of the record date established by the Board
for such dividend or distribution on the Common Stock are entitled to
receive as dividends (the "Participating Dividends") an amount (whether in
the form of cash, securities or other property) equal to the amount (and in
the form) of the dividends or distribution that such holder would have
received had the Series B Preferred Stock been converted into Common Stock
as of the date immediately prior to the record date of such dividend or
distribution on the Common Stock, provided, however, that for the purposes
of determining the number of shares of Common Stock into which the Series B
Preferred Stock is deemed to have been converted, the Conversion Limitation
is disregarded. Such Participating Dividends are payable on the same
payment date as the payment date for the dividend on the Common Stock
established by the Board; provided, however, that if the Company declares
and pays a dividend or makes a distribution on the Common Stock consisting
in whole or in part of Common Stock (or options, rights, warrants or other
securities convertible into or exchangeable for Common Stock), then no such
dividend or distribution is payable in respect of the Series B Preferred
Stock on account of the portion of such dividend or distribution on the
Common Stock payable in Common Stock and in lieu thereof the applicable
anti-dilution adjustment set forth in the Series B Preferred Stock
Certificate of Designations will apply.
Voting Rights
Except as otherwise required by law or as provided in the Series
B Preferred Stock Certificate of Designations, the Series B Preferred Stock
Certificate of Designations provides that the holders of record of shares
of Series B Preferred Stock have full voting rights and powers, and are
entitled to vote on all matters put to a vote or consent of stockholders of
the Company, voting together with the holders of the Common Stock and
Series A Preferred Stock as a single class, with each holder of shares of
Series B Preferred Stock having the number of votes equal to the number of
shares of Common Stock into which such shares of Series B Preferred Stock
could be converted in accordance with the Series B Preferred Stock
Certificate of Designations as of the record date for the vote or consent
which is being taken.
In addition to any matters requiring a separate vote of the
Series B Preferred Stock under applicable law, the Company may not, without
the prior consent or approval of the holders of at least 70% of the issued
and outstanding shares of Series B Preferred Stock, voting as a single
class amend, alter, repeal or restate its certificate of incorporation, its
by-laws or the Series B Preferred Stock Certificate of Designations
(whether by reclassification, merger, consolidation, reorganization or
otherwise) in a manner that alters or changes, in any adverse manner, the
powers, preferences, privileges or rights of the Series B Preferred Stock
or which otherwise would adversely affect the rights, privileges or
preferences of the Series B Preferred Stock.
Mandatory Redemption
The Series B Preferred Stock Certificate of Designations provides
that on the Mandatory Redemption Date, the Company is required to redeem
(subject to the legal availability of funds therefor) each remaining
outstanding share of Series B Preferred Stock for an amount equal to such
share's Redemption Amount (as defined below). If the Redemption Amount of
each share is equal to the Participating Redemption Amount (as defined
below) rather than the Series B Stated Value (as defined below), the
Company will pay the Redemption Amount by issuing to the holder of each
share of Series B Preferred Stock a number of shares of Common Stock equal
to the Series B Stated Value divided by the Series B Conversion Price (as
defined below). If the Redemption Amount is equal to the Series B Stated
Value rather than the Participating Redemption Amount or if the holder has
elected to receive cash in respect of such holder's shares of Series A
Preferred Stock in connection with the redemption of such Series A
Preferred Stock as provided for in the Series A Preferred Stock Certificate
of Designations, the Redemption Amount for each share of Series B Preferred
Stock will be paid by paying to the holder of such share of Series B
Preferred Stock an amount in cash equal to the Series B Stated Value.
"Redemption Amount" means with respect to each share of Series B
Preferred Stock held by a holder, the greater of (i) the Series B Stated
Value of such share of Series B Preferred Stock and (ii) the amount that
would be payable to such holder in respect of Common Stock issuable upon
conversion of such share of Series B Preferred Stock if all outstanding
shares of Series B Preferred Stock were converted into Common Stock
immediately prior to a redemption (the amount in this clause (ii) being
referred to as the "Participating Redemption Amount"). "Series B Stated
Value" means $195.618 (as adjusted for any split, subdivision, combination,
consolidation, recapitalization or similar event with respect to the Series
B Preferred Stock).
If, at the Mandatory Redemption Date, the Company does not have
sufficient capital and surplus legally available to redeem all the
outstanding shares of the Series B Preferred Stock, the Company must take
all measures permitted under the DGCL to increase the amount of its capital
and surplus legally available, and the Company must redeem as many shares
of the Series B Preferred Stock as it may legally redeem, ratably from the
holders thereof in proportion to the number of shares held by them, and
must thereafter from time to time, as soon as it has funds available
therefor, redeem as many shares of the Series B Preferred Stock as it
legally may until it has redeemed all of the outstanding shares of the
Series B Preferred Stock. Shares of the Series B Preferred Stock not
redeemed on the Mandatory Redemption Date will remain outstanding and be
entitled to all of the rights and privileges contained in the Series B
Preferred Stock Certificate of Designations until such shares are redeemed
by the Company in accordance with the Series B Preferred Stock Certificate
of Designations at the Redemption Amount. If, and so long as, any Mandatory
Redemption Obligation with respect to shares of Series B Preferred Stock is
not fully discharged, the Company may not (i) directly or indirectly,
redeem, purchase or otherwise acquire any Parity Stock (other than in
accordance with the Series A Preferred Stock Certificate of Designations)
or discharge any mandatory or optional redemption, sinking fund or other
similar obligation in respect of any Parity Stock (other than in accordance
with the Series A Preferred Stock Certificate of Designations) (except in
connection with a redemption, sinking fund or other similar obligation to
be satisfied pro rata with the Series B Preferred Stock) or (ii) declare or
make any Junior Stock Distribution or, directly or indirectly, discharge
any mandatory or optional redemption, sinking fund or other similar
obligation in respect of any Junior Stock.
Redemption Upon a Change of Control
Pursuant to the Series B Preferred Stock Certificate of
Designations, in the event there occurs a Change of Control, the Company
must offer (subject to the legal availability of funds therefor) to
purchase from each holder of Series B Preferred Stock all of the number of
shares of Series B Preferred Stock of such holder equal to the number of
shares of Series A Preferred Stock the Company redeems from such holder
under the section relating to redemptions upon Changes of Control in the
Series A Preferred Stock Certificate of Designations for an amount in
respect of each share of Series B Preferred Stock held by such holder equal
to the Redemption Amount of such share of Series B Preferred Stock, by
delivery of a notice of such offer within ten Business Days following the
Change of Control. In the event of a Change of Control, each holder of
Series B Preferred Stock has the right (but not the obligation) to require
the Company to purchase a number of shares of Series B Preferred Stock
equal to the number of shares of Series A Preferred Stock the Company
redeems from such holder under the section relating to redemptions upon
Changes of Control in the Series A Preferred Stock Certificate of
Designations for an amount in respect of each share of Series B Preferred
Stock so purchasable equal to the Redemption Amount of such share of Series
B Preferred Stock as follows. If the Redemption Amount is equal to the
Participating Redemption Amount rather than the Series B Stated Value, the
Company will pay the Redemption Amount by issuing to a holder for each
share of Series B Preferred Stock held by such holder a number of shares of
Common Stock equal to the Series B Stated Value divided by the Series B
Conversion Price. If the Redemption Amount is equal to the Series B Stated
Value rather than Participating Redemption Amount or if such holder has
elected to receive cash in respect of such holder's shares of Series A
Preferred Stock pursuant to the section relating to redemptions upon
Changes of Control in the Series A Preferred Stock Certificate of
Designations, the Redemption Amount for each share of Series B Preferred
Stock will be paid by (a) paying to the holder of such share of Series B
Preferred Stock an amount in cash equal to the Adjusted Value (as defined
below) and (b) issuing to the holder of such share of Series B Preferred
Stock a number of shares of Common Stock equal to the quotient obtained by
dividing (i) the excess of the Series B Stated Value over the Adjusted
Value by (ii) the Series B Conversion Price. Shares of the Series B
Preferred Stock not redeemed pursuant to this provision will remain
outstanding and be entitled to all of the rights and privileges contained
in the Series B Preferred Stock Certificate of Designations. "Adjusted
Value" means the Series B Stated Value multiplied by the lesser of (1)
1.00, and (2) the quotient obtained by dividing (a) the number of days
elapsed between the Issuance Date and the date of Liquidation or
redemption, as applicable by (b) 1096.
If upon the occurrence of a Change of Control, the Company does
not have sufficient capital and surplus legally available to redeem all the
outstanding shares of the Series B Preferred Stock the holders require that
the Company redeem, the Company must take all measures permitted under the
DGCL to increase the amount of its capital and surplus legally available,
and the Company must redeem as many shares of the Series B Preferred Stock
as it may legally redeem, ratably from the holders electing to have shares
redeemed in proportion to the number of shares held by them, and thereafter
from time to time, as soon as it has funds available, redeem as many shares
of the Series B Preferred Stock as it legally may until it has redeemed all
of the shares of the Series B Preferred Stock the holders require it to
redeem. Shares of the Series B Preferred Stock not redeemed upon receipt of
a Change of Control Redemption Request (as defined in the Series B
Preferred Stock Certificate of Designations) will remain outstanding and be
entitled to all of the rights and privileges contained in the Series B
Preferred Stock Certificate of Designations until such shares are redeemed
by the Company in accordance with the Series B Preferred Stock Certificate
of Designations. If, and so long as, any Mandatory Redemption Obligation
with respect to shares of Series B Preferred Stock is not fully discharged,
the Company may not (i) directly or indirectly, redeem, purchase or
otherwise acquire any Parity Stock (other than in accordance with the
Series A Preferred Stock Certificate of Designations) or discharge any
mandatory or optional redemption, sinking fund or other similar obligation
in respect of any Parity Stock (other than in accordance with the Series A
Preferred Stock Certificate of Designations) (except in connection with a
redemption, sinking fund or other similar obligation to be satisfied pro
rata with the Series B Preferred Stock) or (ii) declare or make any Junior
Stock Distribution or, directly or indirectly, discharge any mandatory or
optional redemption, sinking fund or other similar obligation in respect of
any Junior Stock.
The Company is not required to effect a redemption pursuant to
this provision until the Notes have been repurchased or repaid or
permission for such redemption has been granted under the Notes.
Liquidation
Pursuant to the Series B Preferred Stock Certificate of
Designations, in the event of a Liquidation of the Company, each holder of
Series B Preferred Stock is entitled to receive out of assets of the
Company available for distribution to its stockholders, in preference to
any distribution to holders of Junior Stock including, without limitation,
Common Stock, an amount of cash with respect to each share of Series B
Preferred Stock held by such holder (such amount being such share's
"Liquidation Preference") equal to the to the greater of (i) the Adjusted
Value plus the amount of proceeds that would be distributed in such
Liquidation to a holder of the number of shares of Common Stock of the
Company equal to the quotient obtained by dividing (x) the Series B Stated
Value minus the Adjusted Value, by (y) the Series B Conversion Price, and
(ii) the amount that would be payable to such holder in respect of Common
Stock issuable upon conversion of such share of Series B Preferred Stock if
all outstanding shares of Series B Preferred Stock were converted into
Common Stock immediately prior to the Liquidation (the amount in this
clause (ii) being referred to as the "Participating Preference Amount");
provided, however, that solely for the purposes of determining the number
of shares of Common Stock into which the Series B Preferred Stock is
convertible, the Conversion Limitation is disregarded; provided, further,
that, in the event of a Liquidation that occurs due to a voluntary or
involuntary case of the Company under Bankruptcy Law, if the Liquidation
Preference with respect to each share of Series B Preferred Stock is equal
to the Participating Preference Amount, then each holder receives, out of
the assets of the Company available for distribution to stockholders, such
Liquidation Preference as follows: (x) in preference to any distribution to
holders of Junior Stock, an amount of cash with respect to each share of
Series B Preferred Stock held by such holder equal to the (i) Adjusted
Value plus (ii) the amount of proceeds that would be distributed in such
Liquidation to a holder of the number of shares of Common Stock of the
Company equal to the quotient obtained by dividing (A) the Series B Stated
Value minus the Adjusted Value, by (B) the Series B Conversion Price and
(y) thereafter, the holders of Series B Preferred Stock will share in all
remaining assets of the Company, pari passu with the holders of Common
Stock (with the holders of the Series B Preferred Stock deemed to hold that
number of shares of Common Stock into which Series B Preferred Stock with a
Liquidation Preference equal to the Series B Excess Amount could be
converted) until the holders of Series B Preferred Stock have received an
amount equal to the amount by which the Participating Preference Amount
exceeds the (i) Adjusted Value plus (ii) the amount of proceeds that would
be distributed in such Liquidation to a holder of the number of shares of
Common Stock of the Company equal to the quotient obtained by dividing (A)
the Series B Stated Value minus the Adjusted Value, by (B) the Series B
Conversion Price (the "Series B Excess Amount").
Optional Conversion
Pursuant to the Series B Preferred Stock Certificate of
Designations, each share of Series B Preferred Stock may, at the option of
the holder thereof, be converted into Common Stock at any time. Each share
of Series B Preferred Stock is convertible into a number of fully paid and
nonassessable shares of Common Stock equal to the quotient obtained by
dividing (x) the Series B Stated Value by (y) the Initial Conversion Price,
subject to adjustment as provided in the Series B Preferred Stock
Certificate of Designations (the "Series B Conversion Price"); provided,
however, that in no event shall shares of Series B Preferred Stock be
convertible into Common Stock to the extent, and at any time, the
Conversion Limitation is applicable; provided, further, any shares of
Series B Preferred Stock that are not convertible at any time due to the
Conversion Limitation will remain outstanding and entitled to all of the
rights and privileges contained in the Series B Preferred Stock Certificate
of Designations.
Mandatory Conversion
Pursuant to the Series B Preferred Stock Certificate of
Designations, each share of Series B Preferred Stock, immediately upon the
occurrence of a Mandatory Conversion Event, automatically converts into
fully paid and non-assessable shares of Common Stock. The number of shares
of Common Stock to which a holder of Series B Preferred Stock is entitled
upon such automatic conversion is determined by dividing (x) the Series B
Stated Value by (y) the Series B Conversion Price in effect at the close of
business on the Business Day immediately preceding such date; provided,
however, that in no event shall shares of Series B Preferred Stock be
converted into Common Stock to the extent, and at any time, the Conversion
Limitation is applicable, and provided, further, that any shares of Series
B Preferred Stock that are not convertible at any time due to the
Conversion Limitation will remain outstanding and entitled to all of the
rights and privileges contained in the Series B Preferred Stock Certificate
of Designations. Any holder's shares of Series B Preferred Stock not
convertible due to the Conversion Limitation will, immediately upon such
time as the Conversion Limitation is no longer applicable to such holder,
automatically convert into fully-paid and non-assessable shares of Common
Stock pursuant to the Series B Preferred Stock Certificate of Designations.
The Series B Preferred Stock Certificate of Designations also
contains customary anti-dilution protection for the shares of Series B
Preferred Stock with respect to stock split, stock dividends and other
capital transactions.
The foregoing descriptions of the Series A Preferred Stock
Certificate of Designations and the Series B Preferred Stock Certificate of
Designations are not intended to be complete and are qualified in their
entirety by the complete text of the Series A Preferred Stock Certificate
of Designations and the Series B Preferred Stock Certificate of
Designations, the forms of which are filed as Exhibit 29 and Exhibit 30
hereto, respectively, and are incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
--------------------------------
Exhibit 1 Joint Filing Agreement, dated as of December 28, 2000.*
Exhibit 2 Stock Purchase Agreement, dated as of October 11, 2000, by
and among the Purchasers, Ciba and the Sellers.*
Exhibit 3 $20,680,780 7.5% Recourse Secured Pay-In-Kind Promissory
Note, due December 31, 2004, issued by LXH to Ciba SCC.*
Exhibit 4 $15,631,720 7.5% Recourse Secured Pay-In-Kind Promissory
Note, due December 31, 2004, issued by LXH II to Ciba SCC.*
Exhibit 5 Hexcel Agreement, dated as of October 11, 2000, by and
between the Purchasers and the Company.*
Exhibit 6 Governance Agreement, dated as of December 19, 2000, by and
among the Purchasers, the Company and the other parties
listed on the signature pages thereto.*
Exhibit 7 Registration Rights Agreement, dated as of December 19,
2000, by and between the Company and the Purchasers.*
Exhibit 8 Pledge Agreement, dated as of December 19, 2000, by LXH in
favor of Ciba SCC.*
Exhibit 9 Pledge Agreement, dated as of December 19, 2000, by LXH II
in favor of Ciba SCC.*
Exhibit 10 Power of Attorney, dated as of December 8, 2000, relating to
The Goldman Sachs Group, Inc.*
Exhibit 11 Power of Attorney, dated as of December 8, 2000, relating to
Goldman, Sachs & Co.*
Exhibit 12 Power of Attorney, dated as of December 20, 2000, relating
to GS Advisors 2000, L.L.C.*
Exhibit 13 Power of Attorney, dated as of March 28, 2000, relating to
Goldman, Sachs & Co. oHG.*
Exhibit 14 Power of Attorney, dated as of December 20, 2000, relating
to Goldman, Sachs Management GP GmbH.*
Exhibit 15 Power of Attorney, dated as of December 20, 2000, relating
to GS Employee Funds 2000 GP, L.L.C.*
Exhibit 16 Power of Attorney, dated as of March 20, 2000, relating to
Stone Street 2000, L.L.C.*
Exhibit 17 Power of Attorney, dated as of December 20, 2000, relating
to GS Capital Partners 2000, L.P.*
Exhibit 18 Power of Attorney, dated as of December 20, 2000, relating
to GS Capital Partners 2000 Offshore, L.P.*
Exhibit 19 Power of Attorney, dated as of December 20, 2000, relating
to GS Capital Partners 2000 GmbH & Co. Beteiligungs KG.*
Exhibit 20 Power of Attorney, dated as of December 20, 2000, relating
to GS Capital Partners 2000 Employee Fund, L.P.*
Exhibit 21 Power of Attorney, dated as of March 20, 2000, relating to
Stone Street Fund 2000, L.P.*
Exhibit 22 Power of Attorney, dated as of December 20, 2000, relating
to LXH Holdings Corp.*
Exhibit 23 Power of Attorney, dated as of December 20, 2000, relating
to LXH Holdings, L.P.*
Exhibit 24 Power of Attorney, dated as of December 20, 2000, relating
to LXH, L.L.C.*
Exhibit 25 Power of Attorney, dated as of December 20, 2000, relating
to LXH II, L.L.C.*
Exhibit 26 Stock Purchase Agreement, dated as of December 18, 2002, by
and among the Company and the Limited Partnerships.
Exhibit 27 Form of Amended and Restated Governance Agreement, among the
Original Purchasers, the Limited Partnerships and the
Company.
Exhibit 28 Form of Amended and Restated Registration Rights Agreement,
among the Company, the Original Purchasers and the Limited
Partnerships.
Exhibit 29 Form of Certificate of Designations of Series A Preferred
Stock.
Exhibit 30 Form of Certificate of Designations of Series B Preferred
Stock.
--------
* Previously filed.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
December 20, 2002
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GOLDMAN, SACHS & CO.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GS ADVISORS 2000, L.L.C.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GOLDMAN, SACHS & CO. OHG
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GOLDMAN, SACHS MANAGEMENT GP GmbH
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GS EMPLOYEE FUNDS 2000 GP, L.L.C.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
STONE STREET 2000, L.L.C.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000, L.P.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
STONE STREET FUND 2000, L.P.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
LXH HOLDINGS CORP.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
LXH HOLDINGS, L.P.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
LXH, L.L.C.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
LXH II, L.L.C.
By: /s/ Roger S. Begelman
--------------------------------
Name: Roger S. Begelman
Title: Attorney-in-fact
SCHEDULE I
----------
The name of each director of The Goldman Sachs Group, Inc. is set
forth below.
The business address of each person listed below is c/o Goldman,
Sachs & Co., 85 Broad Street, New York, NY 10004.
Each person is a citizen of the United States of America except
for Lord Browne of Madingley, who is a citizen of the United Kingdom. The
present principal occupation or employment of each of the listed persons is
set forth below.
Name Present Principal Occupation
Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The
Goldman Sachs Group, Inc.
Robert J. Hurst Vice Chairman of The Goldman Sachs Group,
Inc.
John A. Thain President and Co-Chief Operating Officer of
The Goldman Sachs Group, Inc.
John L. Thornton President and Co-Chief Operating Officer of
The Goldman Sachs Group, Inc.
Lord Browne of Madingley Group Chief Executive of BP plc
James A. Johnson Vice Chairman of Perseus, L.L.C.
John H. Bryan Retired Chairman and Chief Executive Officer
of Sara Lee Corporation
Ruth J. Simmons President of Brown University
Morris Chang Chairman of Taiwan Semiconductor
Manufacturing Company Ltd.
William W. George Retired Chairman and Chief Executive Officer
of Medtronic, Inc.
SCHEDULE II-A-i
---------------
The name, position and present principal occupation of each
executive officer of GS Advisors 2000, L.L.C., the sole general partner of
GS Capital Partners 2000, L.P. and GS Capital Partners 2000 Offshore, L.P.,
are set forth below.
The business address for all the executive officers listed below
is c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
except as follows: The business address of Mitchell S. Weiss is c/o
Goldman, Sachs & Co., 10 Hanover Square, New York, New York 10005. The
business address of Richard S. Sharp, Antoine L. Schwartz, Hughes B. Lepic,
Stephen S. Trevor, Atul Kapur, Michel Plantevin, Robert G. Doumar, Jr. and
Ulrika Werdelin is Peterborough Court, 133 Fleet Street, London EC4A 2BB,
England. The business address of Mary Nee is Cheung Kong Center, 68th
Floor, 2 Queens Road, Central, Hong Kong. The business address of Joseph P.
DiSabato and Melina E. Higgins is 2765 Sand Hill Road, Menlo Park, CA
94025. The business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121
Avenue of the Stars, Los Angeles, CA 90067. The business address of Muneer
A. Satter is 4900 Sears Tower, Chicago, IL 60606.
All executive officers listed below are United States citizens,
except as follows: Richard S. Sharp is a citizen of the United Kingdom.
Sanjeev K. Mehra is a citizen of India. Atul Kapur is a citizen of
Singapore. Antoine L. Schwartz, Hughes B. Lepic and Michel Plantevin are
citizens of France. Patrick E. Mulvihill is a citizen of Ireland. Ulrika
Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation
Richard A. Friedman President Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co.
Gene T. Sykes Vice President Managing Director of Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs International
Esta E. Stecher Assistant Secretary Managing Director of Goldman, Sachs & Co.
Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co.
Antoine L. Schwartz Vice President Managing Director of Goldman Sachs International
Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co.
Elizabeth C. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co.
Patrick E. Mulvihill Assistant Treasurer Managing Director of Goldman, Sachs & Co.
David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co.
Dan H. Jester Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Hughes B. Lepic Vice President Managing Director of Goldman Sachs International
Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co.
Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Randall A. Blumenthal Vice President Managing Director of Goldman, Sachs & Co.
Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co.
Douglas F. Londal Vice President Managing Director of Goldman, Sachs & Co.
Stephen S. Trevor Vice President Managing Director of Goldman Sachs International
Abraham Bleiberg Vice President Managing Director of Goldman, Sachs & Co.
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co.
Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co.
Atul Kapur Vice President Managing Director of Goldman Sachs International
Michel Plantevin Vice President Managing Director of Goldman Sachs International
Robert G. Doumar, Jr. Vice President Managing Director of Goldman Sachs International
Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co.
Elizabeth C. Marcellino Vice President Managing Director of Goldman, Sachs & Co.
Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co.
John E. Bowman Vice President Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Vice President/ Secretary Vice President of Goldman, Sachs & Co.
James B. McHugh Assistant Secretary Vice President of Goldman, Sachs & Co.
Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co.
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co.
Mary Nee Vice President Executive Director of Goldman Sachs (Asia) L.L.C.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs International
SCHEDULE II-A-ii
----------------
The name and principal occupation of each member of the Principal
Investment Area Investment Committee of Goldman, Sachs & Co., which
exercises the authority of Goldman, Sachs & Co. in managing GS Advisors
2000, L.L.C., GS Capital Partners 2000, L.P., GS Capital Partners 2000
Offshore, L.P., GS Capital Partners 2000 GmbH & Co. Beteiligungs KG, GS
Capital Partners 2000 Employee Fund, L.P., and Stone Street Fund 2000,
L.P., are set forth below.
The business address for each member listed below is c/o Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, except as follows:
The business address of Richard S. Sharp and Antoine L. Schwartz is
Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The
business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121 Avenue of
the Stars, Los Angeles, CA 90067. The business address of Muneer A. Satter
is 4900 Sears Tower, Chicago, IL 60606.
All members listed below are United States citizens, except as
follows: Richard S. Sharp is a citizen of the United Kingdom, Sanjeev K.
Mehra is a citizen of India and Antoine L. Schwartz is a citizen of France.
Name Present Principal Occupation
Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co.
Richard A. Friedman Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Managing Director of Goldman, Sachs & Co.
Gene T. Sykes Managing Director of Goldman, Sachs & Co.
Henry Cornell Managing Director of Goldman, Sachs & Co.
Robert V. Delaney Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Managing Director of Goldman Sachs International
Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Managing Director of Goldman, Sachs & Co.
Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc.
Antoine L. Schwartz Managing Director of Goldman Sachs International
SCHEDULE II-B-i
---------------
The name, position and present principal occupation of each
executive officer and director of Goldman, Sachs & Co. Finanz GmbH which is
the sole managing general partner of Goldman, Sachs & Co. oHG are set forth
below.
The business address for each of the executive officers and
directors listed below is MesseTurm, 60308 Frankfurt am Main, Germany.
The executive officers and directors listed below are citizens of
Germany except Wayne L. Moore, who is a citizen of the United States.
Name Position Present Principal Occupation
Andreas Koernlein Managing Director Managing Director of Goldman, Sachs & Co. oHG
Wayne L. Moore Managing Director Managing Director of Goldman, Sachs & Co. oHG
Alexander C. Dibelius Managing Director Managing Director of Goldman, Sachs & Co. oHG
Carsten Kengeter Managing Director Managing Director of Goldman, Sachs & Co. oHG
SCHEDULE II-B-ii
----------------
The name, position and present principal occupation of each
executive officer of GS Management GP GmbH, the sole managing partner of GS
Capital Partners 2000 GmbH & Co. Beteiligungs KG, are set forth below.
The business address for all the executive officers listed below
is c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004.
All executive officers listed below are United States citizens
except Patrick E. Mulvihill who is a citizen of Ireland.
Name Position Present Principal Occupation
Richard A. Friedman Managing Director Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Managing Director Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Managing Director Managing Director of Goldman, Sachs & Co.
David A. Viniar Managing Director Managing Director of Goldman, Sachs & Co.
Henry Cornell Managing Director Managing Director of Goldman, Sachs & Co.
Esta E. Stecher Managing Director Managing Director of Goldman, Sachs & Co.
Elizabeth C. Fascitelli Managing Director Managing Director of Goldman, Sachs & Co.
Patrick E. Mulvihill Managing Director Managing Director of Goldman, Sachs & Co.
David J. Greenwald Managing Director Managing Director of Goldman, Sachs & Co.
Dan H. Jester Managing Director Managing Director of Goldman, Sachs & Co.
Sarah E. Smith Managing Director Managing Director of Goldman, Sachs & Co.
James B. McHugh Managing Director Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Managing Director Vice President of Goldman, Sachs & Co.
John E. Bowman Managing Director Vice President of Goldman, Sachs & Co.
SCHEDULE II-C-i
---------------
The name, position and present principal occupation of each
executive officer of Stone Street 2000, L.L.C., the sole general partner of
Stone Street Fund 2000, L.P., are set forth below.
The business address for all the executive officers listed below
is c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
except as follows: The business address of Mitchell S. Weiss is c/o
Goldman, Sachs & Co., 10 Hanover Square, New York, New York 10005. The
business address of Richard S. Sharp, Antoine L. Schwartz, Hughes B. Lepic,
Stephen S. Trevor, Atul Kapur, Michel Plantevin, Robert G. Doumar, Jr. and
Ulrika Werdelin is Peterborough Court, 133 Fleet Street, London EC4A 2BB,
England. The business address of Syaru (Shirley) Lin and Mary Nee is Cheung
Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business
address of Joseph P. DiSabato and Melina E. Higgins is 2765 Sand Hill Road,
Menlo Park, CA 94025. The business address of Gene T. Sykes is Fox Plaza,
Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. The business
address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606.
All executive officers listed below are United States citizens,
except as follows: Richard S. Sharp is a citizen of the United Kingdom.
Sanjeev K. Mehra is a citizen of India. Atul Kapur is a citizen of
Singapore. Antoine L. Schwartz, Hughes B. Lepic and Michel Plantevin are
citizens of France. Patrick E. Mulvihill is a citizen of Ireland. Ulrika
Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation
Peter M. Sacerdote Chairman/President Advisory Director of Goldman, Sachs & Co.
Peter G. Sachs Vice President Senior Director of The Goldman Sachs Group, Inc.
Richard A. Friedman Vice President Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co.
Gene T. Sykes Vice President Managing Director of Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs International
Esta E. Stecher Vice President/Assistant Managing Director of Goldman, Sachs & Co.
Secretary
Sanjeev K. Mehra Vice President/Treasurer Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co.
Antoine L. Schwartz Vice President Managing Director of Goldman Sachs International
Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co.
Elizabeth C. Fascitelli Vice President Managing Director of Goldman, Sachs & Co.
Patrick E. Mulvihill Assistant Treasurer Managing Director of Goldman, Sachs & Co.
David J. Greenwald Vice President/Assistant Managing Director of Goldman, Sachs & Co.
Secretary
Hughes B. Lepic Vice President Managing Director of Goldman Sachs International
Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co.
Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Dan H. Jester Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Randall A. Blumenthal Vice President Managing Director of Goldman, Sachs & Co.
Syaru (Shirley) Lin Vice President Managing Director of Goldman Sachs (Asia) L.L.C.
Douglas F. Londal Vice President Managing Director of Goldman, Sachs & Co.
Stephen S. Trevor Vice President Managing Director of Goldman Sachs International
Abraham Bleiberg Vice President Managing Director of Goldman, Sachs & Co.
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co.
Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co.
Atul Kapur Vice President Managing Director of Goldman Sachs International
Michel Plantevin Vice President Managing Director of Goldman Sachs International
Robert G. Doumar, Jr. Vice President Managing Director of Goldman Sachs International
Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co.
Elizabeth C. Marcellino Vice President Managing Director of Goldman, Sachs & Co.
John E. Bowman Vice President Vice President of Goldman, Sachs & Co.
Raymond G. Matera Vice President Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Vice President/Secretary Vice President of Goldman, Sachs & Co.
James B. McHugh Assistant Secretary Vice President of Goldman, Sachs & Co.
Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co.
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co.
Mary Nee Vice President Executive Director of Goldman Sachs (Asia) L.L.C.
Richard J. Stingi Vice President Vice President of Goldman, Sachs & Co.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs International
SCHEDULE II-C-ii
----------------
The name and principal occupation of each member of the Stone
Street Investment Committee of Goldman, Sachs & Co., which exercises the
authority of Goldman, Sachs & Co. in managing Stone Street 2000, L.L.C.,
are set forth below.
The business address for each member listed below is c/o Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004.
All members listed below except Sanjeev K. Mehra are United
States citizens. Sanjeev K. Mehra is a citizen of India.
Name Present Principal Occupation
Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co.
Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc.
Richard A. Friedman Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Managing Director of Goldman, Sachs & Co.
Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co.
SCHEDULE II-D-i
---------------
The name, position and present principal occupation of each
executive officer of GS Employee Funds 2000 GP, L.L.C., the sole general
partner of GS Capital Partners 2000 Employee Fund, L.P., are set forth
below.
The business address for all the executive officers listed below
is c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004,
except as follows: The business address of Mitchell S. Weiss is c/o
Goldman, Sachs & Co., 10 Hanover Square, New York, New York 10005. The
business address of Richard S. Sharp, Antoine L. Schwartz, Hughes B. Lepic,
Stephen S. Trevor, Atul Kapur, Michel Plantevin and Ulrika Werdelin is 133
Fleet Street, London EC4A 2BB, England. The business address of Mary Nee is
Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The
business address of Joseph P. DiSabato and Melina E. Higgins is 2765 Sand
Hill Road, Menlo Park, CA 94025. The business address of Gene T. Sykes is
Fox Plaza, Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. The
business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL
60606.
All executive officers listed below are United States citizens,
except as follows: Richard S. Sharp is a citizen of the United Kingdom.
Sanjeev K. Mehra is a citizen of India. Atul Kapur is a citizen of
Singapore. Antoine L. Schwartz, Hughes B. Lepic and Michel Plantevin are
citizens of France. Patrick E. Mulvihill is a citizen of Ireland. Ulrika
Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation
Richard A. Friedman President Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs & Co.
Gene T. Sykes Vice President Managing Director of Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs International
Esta E. Stecher Vice President/ Managing Director of Goldman, Sachs & Co.
Assistant Secretary
Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co.
Antoine L. Schwartz Vice President Managing Director of Goldman Sachs International
Steven M. Bunson Vice President/ Managing Director of Goldman, Sachs & Co.
Assistant Secretary
Elizabeth C. Fascitelli Vice President Managing Director of Goldman, Sachs & Co.
Patrick E. Mulvihill Assistant Treasurer Managing Director of Goldman, Sachs & Co.
David J. Greenwald Vice President/ Managing Director of Goldman, Sachs & Co.
Assistant Secretary
Dan H. Jester Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Hughes B. Lepic Vice President Managing Director of Goldman Sachs International
Russell E. Makowsky Vice President/ Managing Director of Goldman, Sachs & Co.
Assistant Secretary
Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co.
Randall A. Blumenthal Vice President Managing Director of Goldman, Sachs & Co.
Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co.
Douglas F. Londal Vice President Managing Director of Goldman, Sachs & Co.
Stephen S. Trevor Vice President Managing Director of Goldman Sachs International
Abraham Bleiberg Vice President Managing Director of Goldman, Sachs & Co.
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs & Co.
Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs & Co.
Robert G. Doumar, Jr. Vice President Managing Director of Goldman, Sachs & Co.
Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co.
Elizabeth C. Marcellino Vice President Managing Director of Goldman, Sachs & Co.
Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co.
Atul Kapur Vice President Managing Director of Goldman Sachs International
Michel Plantevin Vice President Managing Director of Goldman Sachs International
John E. Bowman Vice President Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Vice President/ Vice President of Goldman, Sachs & Co.
Secretary
James B. McHugh Assistant Secretary Vice President of Goldman, Sachs & Co.
Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & Co.
Raymond G. Matera Vice President Vice President of Goldman, Sachs & Co.
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co.
Mary Nee Vice President Executive Director of Goldman Sachs (Asia) L.L.C.
Richard J. Stingi Vice President Vice President of Goldman, Sachs & Co.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs International
SCHEDULE II-D-ii
----------------
The name and principal occupation of each member of the GS
Employee Funds Investment Committee of Goldman, Sachs & Co., which
exercises the authority of Goldman, Sachs & Co. in managing GS Employee
Funds 2000 GP, L.L.C., are set forth below.
The business address for each member listed below is 85 Broad
Street, New York, New York 10004, except as follows: The business address
of Richard S. Sharp and Antoine L. Schwartz is 133 Fleet Street, London
EC4A 2BB, England. The business address of Gene T. Sykes is Fox Plaza,
Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. The business
address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606.
All members listed below are United States citizens, except as
follows: Richard S. Sharp is a citizen of the United Kingdom, Sanjeev K.
Mehra is a citizen of India and Antoine L. Schwartz is a citizen of France.
Name Present Principal Occupation
Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co.
Richard A. Friedman Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Managing Director of Goldman, Sachs & Co.
Gene T. Sykes Managing Director of Goldman, Sachs & Co.
Henry Cornell Managing Director of Goldman, Sachs & Co.
Robert V. Delaney Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Managing Director of Goldman Sachs International
Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Managing Director of Goldman, Sachs & Co.
Scott B. Kapnick Managing Director of Goldman, Sachs & Co.
Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc.
Antoine L. Schwartz Managing Director of Goldman Sachs International
SCHEDULE III
On April 6, 2000, in connection with an industry-wide
investigation by the Securities and Exchange Commission (the "SEC")
relating to the pricing of government securities in advance refunding
transactions, Goldman, Sachs & Co. ("Goldman Sachs") joined in a global
settlement resolving the SEC investigation as well as a related qui tam
lawsuit purportedly brought on behalf of the United States entitled United
States ex rel. Lissack v. Goldman, Sachs & Co., et al., 95 Civ. 1363
(S.D.N.Y.) (BSJ). Pursuant to the settlement, without admitting or denying
the findings, Goldman Sachs consented to the issuance of an SEC
administrative order (SEA Rel. No. 42640) which, among other things, found
that Goldman Sachs had violated Sections 17(a)(2) and (3) of the Securities
Act of 1933 in connection with such pricing of government securities,
required Goldman Sachs to cease and desist from violating such provisions,
and ordered Goldman Sachs to make payments totaling approximately $5.1
million to the U.S. Treasury and $104,000 to two municipalities. Under the
global settlement, the qui tam lawsuit was dismissed with prejudice, and
the Internal Revenue Service agreed not to challenge the tax-free nature of
the refundings by virtue of the pricing of such securities.
In November 2002, the SEC, the National Association of Securities
Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged
that five broker dealers, including Goldman Sachs, violated Section 17(a)
of the Exchange Act and Rule 17a-4 thereunder, NYSE Rules 440 and 342 and
NASD Rules 3010 and 3110 by allegedly failing to preserve electronic mail
communications for three years and/or to preserve electronic mail
communications for the first two years in an accessible place, and by
allegedly having inadequate supervisory systems and procedures in relation
to the retention of electronic mail communications. Without admitting or
denying the allegations, the five broker dealers, including Goldman Sachs,
consented to censure by the SEC, NASD and NYSE and to the imposition of a
cease-and-desist order by the SEC and Goldman Sachs paid a total fine of
$1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also
undertook to review its procedures regarding the preservation of electronic
mail communications for compliance with the federal securities laws and
regulations and the rules of the NASD and NYSE, and to confirm within a
specified period of time that it has established systems and procedures
reasonably designed to achieve compliance with those laws, regulations and
rules.