Exhibit 10.8
HEXCEL CORPORATION
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective as of July 25, 1998, between HEXCEL
CORPORATION, a Delaware corporation (the "COMPANY"), and William D. Bennison
("EXECUTIVE") and shall become effective on the Effective Date (as defined
below).
WHEREAS, the execution and delivery of this Agreement by the Company
and Executive is made to ensure the continued dedication and loyalty of
Executive to the Company to set forth certain terms and conditions of the
Executives employment with the Company.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT. The Company shall employ Executive, and Executive
hereby agrees to accept employment with the Company, upon the terms and
conditions set forth in this Agreement for the period beginning on the date (the
"EFFECTIVE DATE") of the consummation of the acquisition of substantially all
the assets of Clark-Schwebel, Inc. by the Company and ending on the Expiration
Date (as defined below) unless terminated earlier in accordance with the
provisions of Section 4 hereof (the "EMPLOYMENT PERIOD").
2. POSITION AND DUTIES.
(a) During the Employment Period, Executive shall serve as the
President of the Company's Clark-Schwebel Corporation subsidiary (to be formed)
and shall have the normal duties, responsibilities and authority of his
position, subject to the power of the board of directors of the Company (the
"BOARD") or the Chief Executive Officer ("CEO") or Chief Operating Officer
("COO") of the Company to expand or limit such duties, responsibilities and
authority and to override or direct Executive's actions.
(b) During the Employment Period, Executive shall report to the
Board, CEO or COO, as applicable, and Executive shall devote his best efforts
and his full business time and attention (except for permitted vacation periods
and reasonable periods of illness or other incapacity) to the business and
affairs of the Company and its subsidiaries. Executive shall perform his duties
and responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and
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efficient manner.
3. BASE SALARY AND BENEFITS. During the Employment Period,
Executive shall be entitled to the following:
(a) BASE SALARY. Executive's base salary shall be $218,000.00 per
annum or such higher (but not lower) amount as the Board, CEO or COO may
designate from time to time (the "BASE SALARY"), which salary shall be payable
in regular installments in accordance with the Company's general payroll
practices and shall be subject to customary withholding.
(b) ANNUAL BONUS. Executive shall participate in the Company's
Management Incentive Compensation Plan ("MICP") (a copy of which is attached
hereto as Exhibit A) at a Target Incentive Level (as defined in the MICP) equal
to 45% of Base Salary. Any award payable to the Executive under the MICP shall
be calculated and paid in accordance with the terms and conditions of the MICP.
Any MICP award made in respect of 1998 shall be prorated to the period
commencing July 1, 1998.
(c) STOCK INCENTIVES. Executive shall receive an annual grant of
incentive stock awards under the Company's Incentive Stock Plan which, in the
aggregate on the date of grant, shall be equal in value to 70% of Executive's
Base Salary (such value to be determined by the Compensation Committee of the
Board in its sole discretion, but in a manner consistent with the valuation of
similar awards for other executives of the Company). The timing, terms and
conditions of such awards shall be substantially identical to those granted to
other executives of the Company who are at a comparable executive level to that
of Executive.
(d) BENEFITS. In addition to the Base Salary, Annual Bonus and Stock
Incentives payable to Executive pursuant to this Section 3, Executive will be
entitled to participate in any pension benefit plan, welfare benefit plan
(including without limitation any medical, prescription, dental, disability and
life insurance plan), tax-deferred savings plan and other benefit arrangement
offered by the Company to its executive employees who are at a comparable
executive level to that of Executive. In addition, each Executive will be
entitled to the number of vacation days determined in accordance with the
Company's vacation policy. Executive shall also be entitled to (i) prompt
reimbursement for all reasonable expenses incurred by Executive in the
performance of his duties in accordance with the Company's business expense
reimbursement policy and (ii) an office of a size and with furnishings and other
appointments and to support personnel substantially equal to those made
available to other executives of the Company who are at a comparable executive
level to that of Executive.
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4. TERMINATION.
(a) Unless renewed by the mutual agreement of the Company and
Executive, the Employment Period shall end on the third anniversary of the
Effective Date (the "EXPIRATION DATE"); PROVIDED, THAT the Employment Period (i)
shall terminate prior to the Expiration Date upon Executive's resignation, death
or Disability (as defined below), (ii) may be terminated by the Company at any
time prior to the Expiration Date for Cause (as defined below) or without Cause,
and (iii) may be terminated by Executive at any time prior to the Expiration
Date for Good Reason (as defined below) or without Good Reason.
(b) If the Employment Period is terminated due to Executive's death
or Disability prior to the Expiration Date, Executive shall be entitled to only
such benefits as are customarily provided in such circumstances by the Company
(which benefits shall be no less favorable than the benefits provided by the
Company in such circumstances to other executive employees of the Company who
are at a comparable executive level to that of Executive). For purposes of this
Agreement, "DISABILITY" shall mean the absence of the Executive from the
Executive's duties with the Company on a full-time basis for 180 consecutive
days as a result of incapacity due to mental or physical illness; PROVIDED, THAT
a return to work for less than thirty consecutive days during any period of
Disability shall not be deemed to interrupt the running of (and shall be
included in) the aforementioned 180 day period.
(c) If the Employment Period is terminated by the Company without
Cause or by Executive for Good Reason prior to the Expiration Date, Executive
shall be entitled to receive the following benefits: (i) the Base Salary (as in
effect on the date of termination) that would have been payable to Executive
from the date of termination to the end of the Employment Period had such
termination not occurred, payable in regular installments in accordance with the
Company's general payroll practices and subject to customary withholding, (ii)
cash payments equal to the amount that the Company would have contributed, in
respect to Executive, to its defined contribution plans in which the Executive
participated for the period from the date of termination to the end of the
Employment Period had such termination not occurred and (iii) an amount equal
to the Target Bonus for the year in which termination occurs for each bonus
period that would have occurred from the date of termination to the end of the
Employment Period had such termination not occurred, which amount shall be
payable on or before February 28 of the succeeding fiscal year. In addition,
(1) Executive and his family shall be entitled to participate in the medical and
dental plans offered by the Company from the date of termination through the end
of the Employment Period as if such termination had not occurred, and
thereafter, Executive shall be entitled to participate in such medical and
dental plans pursuant to the provisions of Part 6 of Subtitle B of Title I of
the Employee
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Retirement Income Security Act of 1974, as amended and (2) the
Company shall continue to pay the premiums on life and long-term disability
insurance policies for the benefit of Executive from the date of termination
through the end of the Employment Period as if such termination had not
occurred. During the one year period following the date of termination, the
Company shall pay the reasonable costs and expenses of one executive
outplacement firm to help the Executive secure other employment.
Notwithstanding the foregoing, the Company shall not be obligated to pay or
provide any benefit or amount set forth in this paragraph (c) if Executive has
breached in any material respect the provisions of paragraph 6 hereof.
(d) If the Employment Period is terminated prior to the Expiration
Date by the Company for Cause or by Executive other than for Good Reason,
Executive shall only be entitled to receive his Base Salary through the date of
termination.
(e) For purposes of this Agreement, "CAUSE" shall mean (a) a material
breach of this Agreement by Executive which is not cured within thirty (30) days
of receipt of written notice from the Board, the CEO or the COO specifying such
breach, (b) Executive's willful and repeated failure (except by reason of
Disability) to comply with the lawful directives of the Board or his superior
officer(s) consistent with the terms of this Agreement after a written demand
for such compliance is delivered to Executive by the Board or such officer
identifying specifically the nature of such noncompliance, (c) gross negligence
or willful misconduct in the performance of Executive's duties under this
Agreement, (d) fraud committed by Executive with respect to the Company or any
of its subsidiaries, or (e) the commission of a felony or a crime involving
moral turpitude; PROVIDED, THAT Executive will not be deemed to have been
terminated for Cause unless (i) the Company notifies Executive of the facts and
circumstances providing the basis for termination for Cause, (ii) Executive has
had the opportunity to be heard before the Board, and (iii) three-quarters of
the Board determines that the Company may terminate Executive for Cause under
the Agreement.
(f) For purposes of this Agreement, "GOOD REASON" shall mean (a) a
material breach of the Agreement by the Company which is not cured within thirty
(30) days of receipt of written notice from Executive specifying such breach,
(b) the assignment to Executive of duties inconsistent with his position,
authority or responsibility or a material reduction or a material adverse
alteration of such duties, authority or responsibility or (c) a material
relocation of the offices of the Company where the Executive performs his duties
under this Agreement on the Effective Date. Executive's continued employment by
the Company for a period of not more than ninety (90) days after the occurrence
of the event giving rise to Executive's right to terminate this Agreement for
Good Reason shall not be deemed a waiver of such right.
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5. CONFIDENTIAL INFORMATION. Executive acknowledges that the secret
or confidential information, observations and data obtained by him while
employed by the Company and its subsidiaries concerning the business or affairs
of the Company and its subsidiaries ("CONFIDENTIAL INFORMATION") are the
property of the Company or such subsidiaries. Therefore, Executive agrees that,
except as may be required by law or legal process, he shall not disclose to any
unauthorized person or use for his own purposes any Confidential Information
without the prior written consent of the Board, CEO or COO, unless and to the
extent that the aforementioned matters become generally known to and available
for use by the public other than as a result of Executive's acts or omissions.
Executive shall deliver to the Company at the termination of the Employment
Period, or at any other time the Company may request, all memoranda, notes,
plans, records, reports, computer tapes, printouts and software and other
documents and data (and copies thereof) relating to the Confidential Information
or the business of the Company or any subsidiary which he may then possess or
have under his control.
6. NON-COMPETE, NON-SOLICITATION.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that in the course of his employment
with the Company he has and shall become familiar with the Company's trade
secrets and with other Confidential Information concerning the Company and its
subsidiaries and that his services have been and shall be of special, unique and
extraordinary value to the Company and its subsidiaries. Therefore, Executive
agrees that during the Noncompete Period (as defined below), he shall not
directly or indirectly own any interest in, manage, control, participate in,
consult with, render services for, or in any manner engage in any business
competing with the businesses of the Company or its subsidiaries, as such
businesses exist or are in process on the date of the termination of Executive's
employment, within any geographical area in which the Company or its
subsidiaries engage or plan to engage in such businesses. Nothing herein shall
prohibit Executive from being a passive owner of not more than 2% of the
outstanding stock of any class of a corporation which is publicly traded, so
long as Executive has no active participation in the business of such
corporation.
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee
of the Company or any subsidiary to leave the employ of the Company or such
subsidiary, or in any way interfere with the relationship between the Company or
any subsidiary and any employee thereof, (ii) hire any person who was a key
employee of the Company or any subsidiary at any time during the Employment
Period or (iii) induce or attempt to induce any customer, supplier, licensee,
licensor, franchisee or other business relation of the Company or any subsidiary
to cease doing business with the Company or such subsidiary, or in any way
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interfere with the relationship between any such customer, supplier, licensee or
business relation and the Company or any subsidiary.
(c) If, at the time of enforcement of this Section 6, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. Executive agrees that the restrictions
contained in this Section 6 are reasonable.
(d) In the event of the breach or a threatened breach by Executive of
any of the provisions of this Section 6, the Company, in addition and
supplementary to other rights and remedies existing in its favor, may apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof (without posting a bond or other security). In
addition, in the event of an alleged breach or violation by Executive of this
Section 6, the Noncompete Period shall be tolled until such breach or violation
has been duly cured.
(e) For the purposes of this Agreement, "Noncompete Period" shall
mean (i) if Executive's employment is terminated during the Employment Period by
the Company other than for Cause or by Executive with Good Reason, a period
continuing until the Expiration Date, or (ii) if Executive's employment is
terminated during the Employment Period by the Company for Cause or by Executive
without Good Reason, a period continuing until the second anniversary of the
Expiration Date.
7. EXECUTIVE'S REPRESENTATIONS. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Except for
the Existing Employment Agreement (as defined below), Executive is not a party
to or bound by any employment agreement, noncompete agreement or confidentiality
agreement with any other person or entity other than the Company, and (iii) upon
the execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of Executive, enforceable in
accordance with its terms. Executive hereby acknowledges and represents that he
has consulted with independent legal counsel regarding his rights and
obligations under this Agreement and that he fully understands the terms and
conditions contained herein.
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8. SURVIVAL. Paragraphs 4 through 6 and paragraphs 9 through 17
and Sections 19 through 21 shall survive and continue in full force in
accordance with their terms notwithstanding any termination of the Employment
Period.
9. NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed by first class mail,
certified or registered, return receipt requested, postage prepaid, to the
recipient at the address below indicated:
NOTICES TO EXECUTIVE:
William D. Bennison
12 Belfrey Drive
Greer, SC 29650
NOTICES TO THE COMPANY:
Hexcel Corporation
Two Stamford Plaza
281 Tresser Boulevard
16th Floor
Stamford, CT 06901-3238
Attn: President
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or mailed.
10. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
11. COMPLETE AGREEMENT. This Agreement embodies the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
The captions of this Agreement are for convenience of reference only, are not
part of this Agreement and shall not be used to interpret this Agreement. As
of the Effective Date, and without any further act or written waiver by
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Executive, that certain Employment Agreement ("Existing Employment Agreement")
between Executive and Clark-Schwebel, Inc. dated as of June 1, 1998 shall be
deemed terminated and of no further force and effect and Executive hereby waives
and releases any and all rights and claims existing or arising under or pursuant
to the Existing Employment Agreement. The provisions contained in the preceding
sentence are for the benefit of the Company, its successors and assigns, and
Clark-Schwebel, Inc. and its affiliates, and their respective successors and
assigns, officers, directors, representatives and agents.
12. NO STRICT CONSTRUCTION. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party as the supposed drafter of the language.
13. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
14. SUCCESSORS AND ASSIGNS.
(a) This Agreement is intended to bind and inure to the benefit of
and be enforceable by Executive, the Company and their respective heirs,
personal representatives, successors and assigns, except that Executive may not
assign his rights or delegate his obligations hereunder without the prior
written consent of the Company otherwise than by will or the laws of descent and
distribution.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
herein defined and any successor to its business and/or assets as aforesaid that
assumes and agrees to perform this Agreement by operation of law or otherwise.
(c) Pursuant to the Asset Purchase Agreement by and among Stamford CS
Acquisition Corp., Clark-Schwebel Holdings, Inc., Clark-Schwebel, Inc. and the
Company dated July __, 1998 (the "Asset Agreement"), the Company, effective as
of the Closing (as defined in the Asset Agreement), shall assume certain
indemnity obligations under Section 11.6 of that certain Merger Agreement among
Stamford CS Acquisition Corp., Clark-Schwebel Holdings, Inc. (and other parties
thereto) dated July __, 1998, and hereby acknowledges
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that, effective as of the Closing, Executive shall be a third party
beneficiary under Section 11.6 to the extent that Section 11.6 is applicable
to Executive.
15. DISPUTE RESOLUTION.
(a) If any dispute, claim or difference arises out of this Agreement
or the employment relationship thereby created, or as to the rights and
liabilities of the parties hereunder or as to the breach or invalidity hereof,
or in connection with the construction of this Agreement including any dispute,
claim or difference as to whether an issue is arbitrable (each such event being
hereinafter called a "DISPUTE"), the parties will settle such Dispute
exclusively by binding arbitration in accordance with the Commercial Arbitration
rules of the American Arbitration Association in effect as of the date of
commencement of the arbitration.
(b) Either party may demand that any Dispute be submitted to binding
arbitration. The demand for arbitration shall be in writing, shall be served on
the other party in the manner prescribed in this Agreement for the giving of
notices, and shall set forth a short statement of the factual basis for the
claim, specifying the matter or matters to be arbitrated.
(c) The arbitration will be held in the City of Atlanta unless the
parties mutually agree to have the arbitration held elsewhere, and judgment upon
the award made therein may be entered by any court having jurisdiction thereof;
PROVIDED, FURTHER, THAT nothing contained in this Section 15 will be construed
to limit or preclude a party from bringing any action in any court of competent
jurisdiction in the United States for injunctive or other provisional relief to
compel another party hereto to comply with its obligations under this Agreement
or any other agreement between or among the parties during the pendency of the
arbitration proceedings.
(d) The arbitration shall be conducted by an arbitrator appointed by
the American Arbitration Association (the "ARBITRATOR") who shall conduct such
evidentiary or other hearings as he deems necessary or appropriate and
thereafter shall make a final determination as soon as practicable after the
conclusion of the hearings. Any arbitration pursuant hereto shall be conducted
by the Arbitrator as the parties may mutually agree or if the parties do not so
agree under the guidance of the Federal Rules of Civil Procedure and the Federal
Rules of Evidence, but the Arbitrator shall not be required to comply strictly
with such rules in conducting any such arbitration.
(e) The Company shall bear its own fees and expenses incurred in
connection with the arbitration, the fees and expenses of the Arbitrator
incurred in connection with the arbitration, and shall pay the reasonable fees
and
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expenses (including the legal fees of one law firm) incurred by Executive in
connection with the arbitration.
(f) The Arbitrator shall have the authority to award any remedy or
relief that a Court of the State of New York could order or grant, including
without limitation, specific performance of any obligation under this Agreement,
the awarding of punitive damages, the issuance of an injunction, or the
imposition of sanctions for abuse or frustration of the arbitration process.
The decision and award of the Arbitrator shall be in writing and counterpart
copies thereof shall be delivered to each party. The decision and award of the
Arbitrator shall be binding on all parties. In rendering such decision and
award, the Arbitrator shall not add to, subtract from or otherwise modify the
provisions of this Agreement. Either party to the arbitration may seek to have
the ruling of the Arbitrator entered in any court having jurisdiction thereof.
(g) Each party agrees that it will not file suit, motion, petition or
otherwise commence any legal action or proceeding for any matter which is
required to be submitted to arbitration as contemplated herein except in
connection with the enforcement of an award rendered by the Arbitrator and
except to seek the issuance of an injunction or temporary restraining order
pending a final determination by the Arbitrator. Upon the entry of any order
dismissing or staying any action or proceeding filed contrary to the preceding
sentence, the party which filed such action or proceeding shall promptly pay to
the other party the reasonable attorney's fees, costs and expenses incurred by
such other party prior to the entry of such order.
(h) All aspects of the arbitration shall be considered confidential
and shall not be disseminated by any party with the exception of the ability and
opportunity to prosecute its claim or assert its defense to any such claim. The
Arbitrator shall be required to issue prescriptive orders as may be required to
enforce and maintain this covenant of confidentiality during the course of the
arbitration and after the conclusion of same so that the result and underlying
data, information, materials and other evidence are forever withheld from public
dissemination with the exception of its subpoena by a court of competence
jurisdiction in an unrelated proceeding brought by a third party.
16. AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company and
Executive (or their respective successors and legal representatives), and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement or be deemed a waiver of such provisions.
17. CHOICE OF LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED
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IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. IN
FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT (AND ALL
SCHEDULES AND EXHIBITS HERETO), EVEN THOUGH UNDER THAT JURISDICTION'S CHOICE
OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER
JURISDICTION WOULD ORDINARILY APPLY.
18. AT-WILL EMPLOYMENT. Executive shall be employed by the Company
on an "at will" basis and the employment relationship between the Company and
Executive may be terminated at any time by either the Company or Executive for
any reason whatsoever, with or without cause, but subject to this Agreement.
19. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which Executive at the Company's sole discretion may qualify.
Amounts that are vested benefits or that Executive is otherwise entitled to
receive under any plan, policy, practice or program or any contract or agreement
with the company or any of its affiliated companies at or subsequent to the
termination of the Employment Period shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement. No such amounts shall reduce any amounts payable
under this Agreement.
20. NO DUTY TO MITIGATE. In no event shall Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement and
such amounts shall not be reduced whether or not Executive obtains other
employment.
21. INTEREST. If any payment to Executive required by this Agreement
is not made within the time for such payment specified herein, the Company shall
pay to Executive interest on such payment at the legal rate payable from time to
time upon judgments in the state courts in the State of South Carolina from the
date such payment is payable under the terms hereof until paid.
22. WITHHOLDING. All payments and benefits paid or payable under
this Agreement shall be made net of any withholding for taxes as required by
applicable law.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
HEXCEL CORPORATION
By_______________________
Name:
Title:
________________________
William D. Bennison
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