Exhibit 10.2
EXECUTIVE SEVERANCE AGREEMENT
AGREEMENT made as of the 1st day of July, 2000, between HEXCEL
CORPORATION, a Delaware corporation with offices at Stamford, Connecticut (the
"Company"), and Robert F. Matthews (the "Executive").
WHEREAS, the Company is engaged in the business of developing,
manufacturing and marketing carbon fibers, fabrics, high-performance composite
materials and parts therefrom for the commercial aerospace, space and defense,
recreation and industrial markets throughout the world, and hereafter may engage
in other areas of business (collectively, the "Business");
WHEREAS, the Executive will acquire considerable and unique
knowledge of substantial value to the Company relating to the conduct,
management and operation of the Business;
WHEREAS, the Company is willing to provide the Executive with
certain benefits in the event of the termination of the Executive's employment
with the Company, including in the event of a Change in Control (as hereinafter
defined); and
WHEREAS, the Executive, in consideration of receiving such
benefits from the Company, is willing to afford certain protection to the
Company in regard to the confidentiality of its information, ownership of
inventions and competitive activities.
NOW, THEREFORE, in consideration of the mutual covenants of
the Executive and the Company and of the Executive's continued employment with
the Company, the parties agree as follows:
1. POSITION AND DUTIES. The Executive shall initially serve as Vice President,
Human Resources of the Company and shall have such duties, responsibilities and
authority as are assigned to him by the Board of Directors, the Chief Executive
Officer or the President of the Company in connection with such position. The
Executive shall devote substantially all his working time and efforts to the
business and affairs of the Company.
2. PLACE OF PERFORMANCE. In connection with the Executive's employment by the
Company, the Executive shall be based at the offices of the Company in Stamford,
Connecticut, except for required travel on the Company's business.
3. TERMINATION. The Executive's employment hereunder may be terminated under the
following circumstances:
(a) DEATH. The Executive's employment hereunder shall automatically terminate
upon his death.
(b) DISABILITY. The Company may terminate the Executive's employment hereunder
due to the Executive's inability to perform the customary duties of his
employment by reason of any medical or psychological illness or condition that
is expected to be permanent or of indefinite duration, excluding any such
illness or condition that results from intentional self-inflicted injury,
alcoholism or drug abuse.
(c) CAUSE. The Company may terminate the Executive's employment hereunder for
Cause. The following shall constitute Cause:
(i) the willful and continued failure by the Executive to substantially perform
his duties with the Company (other than any such failure resulting from the
Executive's incapability due to physical or mental illness or any such actual or
anticipated failure after the issuance of a Notice of Termination by the
Executive for Good Reason) after demand for substantial performance is delivered
by the Company that specifically identifies the manner in which the Company
believes the Executive has not substantially performed his duties; or
(ii) the willful engaging by the Executive in misconduct that is demonstrably
and materially injurious to the Company, monetarily or otherwise including, but
not limited to, conduct that violates the covenant not to compete in Section 6
hereof. No act, or failure to act, on the Executive's part shall be considered
"willful" unless done, or omitted to be done, by him not in good faith and
without reasonable belief that his action or omission was in the best interest
of the Company. Notwithstanding the foregoing, the Executive shall not be deemed
to have been terminated for Cause without (i) reasonable notice from the Board
to the Executive setting forth the reasons for the Company's intention to
terminate for Cause, (ii) delivery to the Executive of a resolution duly adopted
by the affirmative vote of two-thirds or more of the Board then in office
(excluding the Executive if he is then a member of the Board) at a meeting of
the Board called and held for such purpose, finding that in the good faith
opinion of the Board, the Executive was guilty of the conduct herein set forth
and specifying the particulars thereof in detail, (iii) an opportunity for the
Executive, together with his counsel, to be heard before the Board, and (iv)
delivery to the Executive of a Notice of Termination from the Board specifying
the particulars thereof in detail.
(d) GOOD REASON. The Executive may terminate his employment hereunder for
Good Reason. The following shall constitute Good Reason:
(i) A diminution in the Executive's position, duties, responsibilities or
authority (except during periods when the Executive is unable to perform all or
substantially all of his duties or responsibilities on account of illness
(either physical or mental) or other incapacity);
(ii) A reduction in the Executive's annual rate of base salary as in effect
on the date hereof or as the same may be increased from time to time;
(iii) Failure by the Company to continue in effect any compensation plan in
which the Executive participates which is material to the Executive's total
compensation, unless an equitable arrangement (embodied in an ongoing substitute
plan) has been made with respect to such plan, or failure by the Company to
continue the Executive's participation therein (or in such substitute plan) on a
basis not materially less favorable to the Executive;
(iv) Failure by the Company to continue to provide the Executive with benefits
substantially similar to those enjoyed by the Executive under any of the
Company's pension, savings, life insurance, medical, health and accident, or
disability plans in which the Executive was participating (except for
across-the-board changes similarly affecting all senior executives of the
Company and all senior executives of any Person in control of the Company), or
failure by the Company to continue to provide the Executive with the number of
paid vacation days per year equal to the greater of (i) 20 and (ii) the number
to which the Executive is entitled in accordance with the Company's vacation
policy;
(v) Failure to provide facilities or services which are suitable to the
Executive's position;
(vi) Failure of any successor (whether direct or indirect, by purchase of stock
or assets, merger, consolidation or otherwise) to the Company to assume the
Company's obligations hereunder or failure by the Company to remain liable to
the Executive hereunder after such assumption;
(vii) Any termination by the Company of the Executive's employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of a
Notice of Termination contained in this Agreement;
(viii) The relocation of the Executive's principal place of employment to a
location more than fifty (50) miles from the Executive's principal place of
employment as identified in Section 2 hereof; or
(ix) Failure to pay the Executive any portion of current or deferred
compensation within seven (7) days of the date such compensation is due.
The Executive's continued employment shall not constitute consent to, or waiver
of rights with respect to, any circumstance constituting Good Reason hereunder;
provided, however, that the Executive shall be deemed to have waived his rights
pursuant to circumstances constituting Good Reason hereunder if he shall not
have provided the Company a Notice of Termination within ninety (90) days
following his knowledge of the occurrence of circumstances constituting Good
Reason.
(e) OTHER THAN DEATH, DISABILITY, CAUSE OR GOOD REASON. (i) The Company may
terminate the Executive's employment, other than as provided in Sections (3)(a),
(b) or (c) hereof, upon written notice to the Executive and (ii) the Executive
may terminate his employment with the Company, other than as provided in Section
3(d) hereof, upon written notice to the Company.
(f) NOTICE OF TERMINATION; DATE OF TERMINATION. Any termin-ation of the
Executive's employment by the Company or by the Executive (other than a
termination pursuant to Section 3(a) hereof) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 10.
For purposes of this Agreement,
i) "Notice of Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated, and
(ii) "Date of Termination" shall mean (A) if the Executive's employment is
terminated pursuant to Section 3(a), the date of his death, (B) if the
Executive's employment is terminated pursuant to Section 3(b), thirty days after
Notice of Termination is given (provided that the Executive shall not have
returned substantially to full-time performance of the Executive's duties during
such thirty day period), (C) if the Executive's employment is terminated
pursuant to Sections 3(c), (d) or (e), the date specified in the Notice of
Termination (provided that such date shall not be more than thirty days from the
date Notice of Termination is given and, in the case of a termination for Cause,
shall not be less than fifteen days from the date Notice of Termination is
given), or (D) if the Executive terminates his employment and fails to provide
written notice to the Company of such termination, the date of such termination.
4. COMPENSATION UPON DEATH, DISABILITY OR TERMINATION.
(a) If the Executive's employment is terminated by his death, the Company shall
pay the Executive's legal representative (i) at the time such payments are due,
the Executive's full base salary through the Date of Termination at the rate in
effect at the Date of Termination and all other unpaid amounts, if any, to which
the Executive is entitled as of the Date of Termination including any
reimbursable business expenses and amounts earned under any compensation plan or
program (including the Bonus Plan) and (ii) within ten days following the date
of the Executive's death, a lump sum payment in an amount equal to the sum of
(A) the Executive's annual base salary in effect as of the Date of Termination
and (B) the Executive's Average Annual Bonus (the term "Average Annual Bonus"
shall mean the average of the last three annual bonus amounts awarded to the
Executive under the Company's Management Incentive Compensation Plan, or any
successor, alternate or supplemental plan (the "Bonus Plan") or, if the
Executive has not participated in the Bonus Plan for three completed annual
award periods, the average of the annual bonus amounts awarded, provided that
any award made in respect of an annual award period in which the Executive did
not participate for the full period (the "Pro-Rata Award") shall be annualized
for purposes of computing the Average Bonus Amount by multiplying the Pro-Rata
Award by a fraction, of which the numerator is 365 and the denominator is the
number of days during which the Executive participated in such annual award
period).
(b) During any period that the Executive fails to perform his duties hereunder
as a result of incapacity due to physical or mental illness the Executive shall
continue to receive his full base salary at the rate then in effect for such
period (offset by any payments to the Executive received pursuant to disability
benefit plans maintained by the Company) until his employment is terminated
pursuant to Section 3(b) hereof; and within ten days following such termination,
the Company shall pay the Executive (i) all unpaid amounts, if any, to which the
Executive is entitled as of the Date of Termination including any reimbursable
business expenses and amounts earned under any compensation plan or program
(including the Bonus Plan) and (ii) a lump sum payment in an amount equal to the
sum of (A) the Executive's annual base salary in effect as of the Date of
Termination and (B) the Executive's Average Annual Bonus.
(c) If the Executive's employment is terminated by the Company for Cause or by
the Executive for other than Good Reason, the Company shall at the time such
payments are due pay the Executive his full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given and
all other unpaid amounts, if any, to which the Executive is entitled as of the
Date of Termination including any reimbursable business expenses and amounts
earned under any compensation plan or program (including the Bonus Plan), and
the Company shall, thereafter, have no further obligations to the Executive
under this Agreement.
(d) If (1) the Company shall terminate the Executive's employment other than for
Disability and other than for Cause or (2) the Executive shall terminate his
employment for Good Reason, then
(i) the Company shall pay the Executive on the Date of Termination, by wire
transfer to the bank account designated by the Executive, the Executive's full
base salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given (disregarding any reduction in salary rate which
would constitute a Good Reason) and all other unpaid amounts, if any, to which
the Executive is entitled as of the Date of Termination including any
reimbursable business expenses and amounts earned under any compensation plan or
program (including the Bonus Plan);
(ii) in lieu of any further salary payments to the Executive for periods
subsequent to the Date of Termination, the Company shall pay to the Executive on
the Date of Termination, by wire transfer to the bank account designated by the
Executive, an amount equal to the product of (A) the sum of (1) the Executive's
annual base salary in effect at the time the Notice of Termination is given
(disregarding any reduction in salary rate which would constitute a Good Reason)
and (2) the Executive's Average Annual Bonus, and (B) (x) if the Executive
terminates his employment or the Company terminates the Executive's employment,
in either case within two years after the occurrence of a Change in Control, the
number two or (y) in any other case, the number one; and
(iii) the Company shall continue the participation of the Executive for a period
of one year (except, if the Executive terminates his employment or the Company
terminates the Executive's employment, in either case within two years after the
occurrence of a Change in Control, such period shall be two years), in all
medical, health, life and other employee "welfare" plans and programs in which
the Executive participated immediately prior to the Date of Termination,
provided that the Executive's continued participation is possible under the
general terms and provisions of such plans and programs. In the event that the
Executive's participation in any such plan or program is barred, the Company
shall by other means provide the Executive with benefits equivalent to those
which the Executive would otherwise have been entitled to receive under such
plans and programs from which his continued participation is barred.
(e) If the Company shall terminate the Executive's employment other than for
Cause, or the Executive shall terminate his employment for Good Reason, during
the period of a Potential Change in Control or at the request of a person who,
directly or indirectly, takes any action designed to cause a Change in Control,
then the Company shall make payments and provide benefits to the Executive under
this Agreement as though a Change in Control had occurred immediately prior to
such termination. A "Potential Change in Control" shall exist during the period
commencing at the time the Company enters into any agreement or arrangement
which, if consummated, would result in a Change in Control and ending at the
time such agreement or arrangement either (i) results in a Change in Control or
(ii) terminates, expires or otherwise becomes of no further force or effect.
(f) For purposes of this Agreement, a "Change in Control" shall mean the first
to occur of the following events:
(1) (i) Any person (as defined in Section 3(a)(9) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as modified and used in Sections 13(d)
and 14(d) of the Exchange Act, but excluding Ciba for so long as Ciba is subject
to the restrictions imposed by the Governance Agreement) (a "Person") is or
becomes the Beneficial Owner (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 20% or more of either (A) the then outstanding Common Stock
of the Company (the "Outstanding Common Stock") or (B) the combined voting power
of the then outstanding securities entitled to vote generally in the election of
directors of the Company (the "Total Voting Power"); excluding, however, the
following: (x) any acquisition by the Company or any of its affiliates or (y)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its affiliates and (ii) Ciba Beneficially
Owns, in the aggregate, a lesser percentage of the Total Voting Power than such
Person Beneficially Owns;
(2) A change in the composition of the Board such that the individuals who, as
of the effective date of this Agreement, constitute the Board (such individuals
shall be hereinafter referred to as the "Incumbent Directors") cease for any
reason to constitute at least a majority of the Board; provided, however, for
purposes of this definition, that any individual who becomes a director
subsequent to such effective date, whose election, or nomination for election by
the Company's stockholders, was made or approved pursuant to the Governance
Agreement or by a vote of at least a majority of the Incumbent Directors (or
directors whose election or nomination for election was previously so approved)
shall be considered a member of the Incumbent Board; but, provided, further,
that any such individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on behalf of a
person or legal entity other than the Board shall not be so considered a member
of the Incumbent Board;
(3) The effective date of a reorganization, merger or consolidation by the
Company, or the approval by the stockholders of the Company of a sale or other
disposition of all or substantially all of the assets of the Company ("Corporate
Transaction"); excluding, however, such a Corporate Transaction (1) pursuant to
which all or substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Common Stock and Total
Voting Power immediately prior to such Corporate Transaction will beneficially
own, directly or indirectly, more than 50%, respectively, of the outstanding
common stock and the combined voting power of the then outstanding securities
entitled to vote generally in the election of directors of the company resulting
from such Corporate Transaction (including, without limitation, a corporation
which as a result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately prior to
such Corporate Transaction, of the Outstanding Common Stock and Total Voting
Power, as the case may be, or (2) after which no Person beneficially owns a
greater percentage of the combined voting power of the then outstanding
securities entitled to vote generally in the election of directors of such
corporation than does Ciba;
(4) Ciba shall become the Beneficial Owner of more than 57.5% of the Total
Voting Power; or
(5) The approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
For purposes of this Section 4(f), (x) the term "Ciba" shall mean Ciba
Specialty Chemicals Holding Inc., a Swiss corporation, together with it
affiliates holding Company voting securities pursuant to Section 4.01(b) of the
Governance Agreement, (y) the term "Governance Agreement" shall have the meaning
given in that certain Strategic Alliance Agreement among the Company, Ciba-Geigy
Limited and Ciba Geigy Corporation, dated as of September 29, 1995, as amended,
and any of their respective permitted successors or assigns thereunder, and (z)
the consolidation between Ciba and Clariant shall be deemed not to be a "Change
in Control."
(g) Notwithstanding any other provisions of this Agreement, in the event that
any payment, benefit, property or right received or to be received by the
Executive in connection with a Change in Control or the Executive's termination
of employment (whether pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with the Company, any Person whose actions result
in a Change in Control or any Person affiliated with the Company or such Person)
(all such payments, benefits, properties and rights being hereinafter referred
to as the "Total Payments") would be subject (in whole or part) to the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended, or any successor provision (the "Code"), then the payments and benefits
provided under Section 4(d) or 4(e) hereof ("Severance Payments") which are cash
shall first be reduced, and the noncash Severance Payments shall thereafter be
reduced, to the extent necessary so that no portion of the Total Payments is
subject to the Excise Tax, but only if (A) the net amount of such Total
Payments, as so reduced (and after subtracting the net amount of federal, state
and local income taxes on such reduced Total Payments) is greater than or equal
to (B) the net amount of such Total Payments without such reduction (but after
subtracting the net amount of federal, state and local income taxes on such
Total Payments and the amount of Excise Tax to which the Executive would be
subject in respect of such unreduced Total Payments); provided, however, that
the Executive may elect (by waiving the receipt or enjoyment of all or any
portion of the noncash Severance Payments at such time and in such manner that
the Severance Payments so waived shall not constitute a "payment" within the
meaning of section 280G(b) of the Code) to have the noncash Severance Payments
reduced (or eliminated) prior to any reduction of the cash Severance Payments.
For purposes of determining whether and the extent to which the Total Payments
will be subject to the Excise Tax (i) no portion of the Total Payments the
receipt or enjoyment of which the Executive shall have waived at such time and
in such manner as not to constitute a "payment" within the meaning of section
280G(b) of the Code shall be taken into account, (ii) no portion of the Total
Payments shall be taken into account which, in the written opinion of tax
counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by
the accounting firm (the "Auditor") which was, immediately prior to the Change
in Control, the Company's independent auditor, does not constitute a "parachute
payment" within the meaning of section 280G(b)(2) of the Code (including by
reason of section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax,
no portion of such Total Payments shall be taken into account which, in the
written opinion of Tax Counsel, constitutes reasonable compensation for services
actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in
excess of the Base Amount allocable to such reasonable compensation, and (iii)
the value of any noncash benefit or any deferred payment or benefit included in
the Total Payments shall be determined by the Auditor in accordance with the
principles of sections 280G(d)(3) and (4) of the Code. At the time that payments
are made under this Agreement, the Company shall provide the Executive with a
written statement setting forth the manner in which such payments were
calculated and the basis for such calculations including, without limitation,
any opinions or other advice the Company has received from Tax Counsel, the
Auditor or other advisors or consultants (and all such opinions or advice shall
be in writing, shall be attached to the statement and shall expressly state that
the Executive may rely thereon). If the Executive objects to the Company's
calculations, the Company shall pay to the Executive such portion of the
Severance Payments (up to 100% thereof) as the Executive determines is necessary
to result in the proper application of the first sentence of this Section 4(g).
The Executive and the Company shall each reasonably cooperate with the other in
connection with any administrative or judicial proceedings concerning the
existence or amount of liability for Excise Tax with respect to the Total
Payments.
5. NO MITIGATION. The Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
Agreement be reduced by any compensation earned by the Executive as the result
of employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company, or otherwise.
6. COVENANT NOT TO COMPETE. The Executive acknowledges that, as a senior
management employee, the Executive will be involved, on a high level, in the
development, implementation and management of the Company's global business
plans, including those which involve the Company's finances, research,
marketing, planning, operations, and acquisition strategies. By virtue of the
Executive's position and knowledge of the Company, the Executive acknowledges
that his employment by a competitor of the Company represents a serious
competitive danger to the Company, and that the use of the Executive's
experience and knowledge about the Company's business, strategies and plans by a
competitor can and would constitute a valuable competitive advantage over the
Company. In view of the foregoing, and in consideration of the payments made to
the Executive under this Agreement, the Executive covenants and agrees that, if
the Executive's employment is terminated and the Company has fulfilled its
obligations under this Agreement, for a period of two years after the Date of
Termination the Executive will not engage, in any capacity, directly or
indirectly, including but not limited as employee, agent, consultant, manager,
executive, owner or stockholder (except as a passive investor holding less than
a 5% equity interest in any enterprise) in any business entity engaged in
competition with the Business conducted by the Company on the Date of
Termination anywhere in the world; provided, that the Executive may be employed
by a competitor of the Company so long as the Executive's duties and
responsibilities do not relate directly or indirectly to the business segment of
the new employer which is actually or potentially competitive with the Business.
7. ASSIGNMENT OF INVENTIONS. The Executive agrees that all processes,
technologies, designs and inventions, including new contributions, improvements,
ideas and discoveries, whether patentable or not (collectively "Inventions"),
conceived, developed, invented or made by the Executive prior to the Date of
Termination shall belong to the Company, provided that such Inventions grew out
of the Executive's work with the Company or any of its subsidiaries or
affiliates, are related in any manner to the business (commercial or
experimental) of the Company or any of its subsidiaries or affiliates or are
conceived or made on the Company's time or with the use of the Company's
facilities or materials. At the request of the Company, the Executive shall (i)
promptly disclose such Inventions to the Company, (ii) assign to the Company,
without additional compensation, all patent and other rights to such Inventions
for the United States and foreign countries, (iii) sign all papers necessary to
carry out the foregoing, and (iv) give testimony or otherwise take action in
support of the Executive's status as the inventor of such Inventions, in each
case at the Company's expense.
8. CONFIDENTIALITY. In addition to any obligation regarding Inventions,
the Executive acknowledges that the trade secrets and confidential and
proprietary information of the Company, its subsidiaries and affiliates,
including without limitation: (a) unpublished information concerning:
(i) research activities and plans,
(ii) marketing or sales plans,
(iii) pricing or pricing strategies,
(iv) operational techniques, and
(v) strategic plans;
(b) unpublished financial information, including information concerning
revenues, profits and profit margins;
(c) internal confidential manuals; and
(d) any "material inside information" as such phrase is used for purposes of the
Securities Exchange Act of 1934, as amended; all constitute valuable, special
and unique information of the Company, its subsidiaries and affiliates. In
recognition of this fact, the Executive agrees that the Executive will not
disclose any such trade secrets or confidential or proprietary information
(except (i) information which becomes publicly available without violation of
this Agreement, (ii) information of which the Executive, prior to disclosure by
the Executive, did not know and should not have known was disclosed to the
Executive by a third party in violation of any other person's confidentiality or
fiduciary obligation, (iii) disclosure required in connection with any legal
process (provided the Executive promptly gives the Company written notice of any
legal process seeking to compel such disclosure and reasonably cooperates in the
Company's attempt to eliminate or limit the scope of such disclosure) and (iv)
disclosure while employed by the Company which the Executive reasonably and in
good faith believes to be in or not opposed to the interests of the Company) to
any person, firm, corporation, association or other entity, for any reason or
purpose whatsoever, nor shall the Executive make use of any such information for
the benefit of any person, firm, corporation or other entity except on behalf of
the Company, its subsidiaries and affiliates.
9. BINDING AGREEMENT. This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he had continued to live, all
such amounts, unless otherwise provided in this Agreement, shall be paid to the
Executive's devisee, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
10. NOTICE. Notices, demands and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered, if delivered personally, or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, and when received if
delivered otherwise, addressed as follows:
If to the Executive:
Robert F. Matthews
14 Scattergood Circle
Trumbull, CT 06611
If to the Company:
Hexcel Corporation
281 Tresser Blvd.
Stamford, CT 06901-3238
Attn: General Counsel
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
11. GENERAL PROVISIONS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive (or, if applicable, his legal representative)
and the Company. No waiver by either party hereto at any time of any breach by
the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Connecticut without regard to its conflicts of law principles.
12. VALIDITY AND ENFORCEABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. It is the desire and intent of the parties that the provisions of
Sections 6, 7 and 8 hereof shall be enforceable to the fullest extent permitted
by applicable law or public policy. If any such provision or the application
thereof to any person or circumstance shall, to any extent, be construed to be
invalid or unenforceable in whole or in part, then such provision shall be
construed in a manner so as to permit its enforceability to the fullest extent
permitted by applicable law or public policy. In any case, the remaining
provisions or the application thereof to any person or circumstance other than
those to which they have been held invalid or unenforceable, shall remain in
full force and effect.
13. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. ARBITRATION. Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators in the State of Connecticut, in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided,
however, that the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any continuation of
any violation of the provisions of Sections 6, 7 or 8 hereof.
15. ENTIRE AGREEMENT. This Agreement is the entire agreement or understanding
between the Company and the Executive regarding the subject matter hereof.
16. REMEDIES. The Executive agrees that in addition to any other remedy provided
at law or in equity or in this Agreement, the Company shall be entitled to a
temporary restraining order and both preliminary and permanent injunctions
restraining Executive from violating any provision of Sections 6, 7 and 8
hereof. In the event the Company fails to make any payment to the Executive when
due, the Executive, in addition to any other remedy available at law or in
equity, shall be entitled to interest on such unpaid amounts from the date such
payment was due to the date actual payment is received by the Executive, at the
legal rate applicable to unpaid judgments. The Company shall pay to the
Executive all legal, audit, and actuarial fees and expenses as a result of the
termination of employment, including all such fees and expenses incurred in
contesting, arbitrating or disputing any action or failure to act by the Company
or in seeking to obtain or enforce any right under this Agreement or any other
plan, arrangement or agreement with the Company, provided that the Executive has
obtained a final determination supporting at least part of his claim and there
has been no determination that the balance of his claim was made in bad faith.
17. CONSENT TO JURISDICTION AND FORUM. The Executive hereby expressly and
irrevocably agrees that any action, whether at law or in equity, permitted to be
brought by the Company under this Agreement may be brought in the State of
Connecticut or in any federal court therein. The Executive hereby irrevocably
consents to personal jurisdiction in such court and to accept service of process
in accordance with the provisions of the laws of the State of Connecticut. In
the event the Company commences any such action in the State of Connecticut or
in any Federal court therein, the Company shall reimburse the Executive for the
reasonable expenses incurred by the Executive in his appearance in such forum
which are in addition to the expenses the Executive would have incurred by
appearing in the forum of the Executive's residence at that time, including but
not limited to additional legal fees.
HEXCEL CORPORATION
By: ________________________________
Name:
Title:
EXECUTIVE
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Robert F. Matthews