EXECUTION COPY
$240,000,000
HEXCEL CORPORATION
9 3/4% SENIOR SUBORDINATED NOTES DUE 2009
PURCHASE AGREEMENT
January 15, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON SMITH BARNEY INC.
c/o CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. Hexcel Corporation, a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"INITIAL PURCHASERS") $240,000,000 principal amount of its 9 3/4% Senior
Subordinated Notes Due 2009 (the "OFFERED SECURITIES"). The Offered Securities
will be issued under an indenture dated as of January 21, 1999 (the
"INDENTURE"), between the Company and The Bank of New York, as trustee (the
"TRUSTEE").
The Offered Securities will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of 1933 (the
"SECURITIES ACT"), in reliance upon an exemption therefrom. Prior to the Closing
Date (as defined herein), the Company will deliver to the Initial Purchasers a
Preliminary Offering Circular (as defined herein) setting forth the information
concerning the Company and the Offered Securities. Any references herein to the
Offering Circular (as defined herein) shall be deemed to include all amendments
and supplements thereto, unless otherwise noted, and all documents (the
"INCORPORATED DOCUMENTS") incorporated by reference therein and filed under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"); and any
references herein to the terms "amend", "amendment" or "supplement" with respect
to the Offering Circular shall be deemed to refer to and include the filing of
any document under the Exchange Act subsequent to the date thereof and before
the Closing Date that is incorporated by reference therein. The Company hereby
confirms that it has authorized the use of the Incorporated Documents and the
Offering Document (as defined herein) in connection with the offering and resale
of the Offered Securities by the Initial Purchasers in accordance with Section 2
hereof.
Holders of the Offered Securities (including the Initial Purchasers and
their direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement dated January 21, 1999, among the Company and the
Initial Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to which the
Company will agree to file with the Securities and Exchange Commission (the
"COMMISSION") (i) a registration statement under the Securities Act (the
"EXCHANGE OFFER REGISTRATION STATEMENT") registering an issue of senior
subordinated notes of the Company (the "EXCHANGE NOTES"), which are identical in
all material respects to the Offered Securities (except that the Exchange Notes
will not contain terms with respect to transfer restrictions and interest rate
increase) and (ii) under certain circumstances, a shelf registration statement
pursuant to Rule 415 under the Securities Act.
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Document.
The Company hereby agrees with the Initial Purchasers as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Initial Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities has been prepared by the Company.
Such preliminary offering circular (the "PRELIMINARY OFFERING
CIRCULAR") and offering circular (the "OFFERING CIRCULAR"), as both are
supplemented as of the date of this Agreement, and any other document
approved by the Company for use in connection with the contemplated
resale of the Offered Securities, are hereinafter collectively referred
to as the "OFFERING DOCUMENT". On the date of this Agreement, the
Offering Document does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon
written information furnished to the Company by any Initial Purchaser
through Credit Suisse First Boston Corporation ("CSFBC") specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof. Except as
disclosed in the Offering Document, on the date of this Agreement, the
Incorporated Documents and all subsequent reports (collectively, the
"EXCHANGE ACT REPORTS") which have been filed by the Company with the
Commission or sent to stockholders pursuant to the Exchange Act when
they were filed with the Commission, conformed in all material respects
to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder.
(b) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering
Document; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company
and its Subsidiaries (as hereinafter defined), taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(c) Each subsidiary of the Company within the meaning of Rule
1-02(w) of Regulation S-X under the Securities Act is listed in
Schedule B hereto (each individually, a "SUBSIDIARY" and collectively,
the "SUBSIDIARIES"). Each Subsidiary of the Company has been duly
incorporated and is a validly existing corporation in good standing
(where applicable) under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Offering
Document; and each Subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing (where applicable)
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a Material Adverse
Effect; all of the issued and outstanding capital stock of each
Subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and, except as disclosed in the
Offering Document, the capital stock of each Subsidiary is owned by the
Company, directly or through Subsidiaries, and is owned free from
material liens, encumbrances and defects except for liens and
encumbrances created by or under the Senior Credit Facility (as defined
in the Offering Document).
2
(d) The Indenture has been duly authorized by the Company; the
Offered Securities have been duly authorized by the Company; and when
the Offered Securities are delivered and paid for pursuant to this
Agreement and the Indenture on the Closing Date, the Indenture will
have been duly executed and delivered (assuming due authorization,
execution and delivery by the Trustee), such Offered Securities will
have been duly executed, authenticated, issued and delivered (assuming
authentication by the Trustee in accordance with the provisions of the
Indenture) and will conform in all material respects to the description
thereof contained in the Offering Document; and the Indenture and such
Offered Securities will constitute valid and legally binding
obligations of the Company (and the Offered Securities will be entitled
to the benefits in the Indenture), enforceable in accordance with their
terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws, now or hereafter in effect, relating
to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(e) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Initial Purchaser for a brokerage commission, finder's fee or other
like payment in connection with the issuance and sale of Offered
Securities.
(f) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale
of the Offered Securities by the Company except (i) those that have
been obtained or made; (ii) for filings and qualifications contemplated
by the Registration Rights Agreement; (iii) such as may be required
under foreign or state securities or blue sky laws; or (iv) such
Exchange Act Reports as may be required to be filed with the Commission
after the Closing Date pursuant to the Company's periodic reporting
requirements under Sections 13 and 15(d) of the Exchange Act.
(g) The Registration Rights Agreement has been duly authorized by
the Company and will conform in all material respects to the
description thereof in the Offering Document and, when the Registration
Rights Agreement has been duly executed and delivered by the Initial
Purchasers, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or other similar laws, now or hereinafter in effect, relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) The execution, delivery and performance of the Indenture,
Registration Rights Agreement and this Agreement, and the issuance and
sale of the Offered Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, (i) any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary of the Company or any of their properties, or
(ii) any agreement (except for such provisions in the Senior Credit
Facility and the indenture governing the issuance of the Ciba Notes (as
defined in the Offering Document) which shall be amended or consents
obtained to avoid any default thereunder) or instrument to which the
Company or any such Subsidiary is a party or by which the Company or
any such Subsidiary is bound or to which any of the properties of the
Company or any such Subsidiary is subject, or (iii) the charter or
by-laws of the Company or any such Subsidiary except, in the case of
clauses (i) and (ii) above,
3
for breaches, violations and defaults that would not have a Material
Adverse Effect or prevent or negate the effectiveness of the Indenture,
Registration Rights Agreement or this Agreement; and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(j) The Company and its Subsidiaries have good and marketable
title to all real properties and all other properties and assets owned
by them, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere with
the use made or to be made thereof by them except, in each case, (i) as
disclosed in the Offering Document; (ii) such liens and encumbrances
created by or under the Senior Credit Facility (as defined in the
Offering Document); or (iii) such as do not have a Material Adverse
Effect; and the Company and its Subsidiaries hold any leased real or
personal property under valid and enforceable leases with such
exceptions as are not material to the Company and its Subsidiaries
taken as a whole and would not materially interfere with the use made
or proposed to be made thereof by them except (i) as disclosed in the
Offering Document; or (ii) such as do not have a Material Adverse
Effect.
(k) The Company and its Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business in the manner
presently conducted by them, subject to such qualifications as may be
set forth in the Offering Document or except where the failure to so
possess would not, singularly or in the aggregate, have a Material
Adverse Effect and have not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company or any of its
Subsidiaries, would have a Material Adverse Effect.
(l) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(m) The Company and its Subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "INTELLECTUAL PROPERTY
RIGHTS") necessary to conduct the business now operated by them, or
presently employed by them except where the failure to so own or
possess would not, singularly or in the aggregate, have a Material
Adverse Effect and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its Subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(n) Except as disclosed in the Offering Document, neither the
Company nor any of its Subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances or wastes (collectively, "ENVIRONMENTAL LAWS"), owns
or operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site disposal
or contamination pursuant to any environmental laws, or, to the
knowledge of the Company, is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect;
and the Company is not aware of any pending investigation which might
lead to such a claim.
(o) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company
or any of its Subsidiaries or, to the knowledge of the Company or its
Subsidiaries, to which any of their respective properties are subject
or that, if
4
determined adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture or this Agreement, or which
are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the
Company's knowledge, threatened or contemplated.
(p) The historical financial statements included in the Offering
Document present fairly the financial position of the Company and its
consolidated subsidiaries on the basis stated in the Offering Document
as of the dates shown and their results of operations and cash flows
for the periods shown, and such financial statements have been prepared
in conformity with the generally accepted accounting principles in the
United States applied on a consistent basis throughout the periods
involved, except as disclosed therein; and the pro forma financial
information, and the related notes thereto included in the Offering
Document and the assumptions used in preparing such pro forma financial
statements are a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(q) Except as disclosed in the Offering Document, since the date
of the latest audited financial statements included in the Offering
Document there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its Subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Offering Document, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(r) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will not be an "investment company"
required to be registered under the Investment Company Act.
(s) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(t) Assuming the accuracy of the representations and warranties of
the Initial Purchasers set forth in this Agreement and compliance by
the Initial Purchasers with the provisions of this Agreement, it is not
necessary in connection with the offer, sale and delivery of the
Offered Securities to the Initial Purchasers and to each subsequent
purchaser in the manner contemplated by this Agreement and the Offering
Document to register the Offered Securities under the Securities Act or
to qualify the Indenture under the United States Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT").
(u) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period
prior to the date hereof, offered or sold in the United States or to
any U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities or any security of the same
class or series as the Offered Securities or (ii) has offered or will
offer or sell the Offered Securities (A) in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to
any securities sold in reliance on Rule 903 of Regulation S, by means
of any directed selling efforts within the meaning of Rule 902(b) of
Regulation S. The
5
Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for this Agreement.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Initial Purchasers, and the Initial Purchasers agree, severally and not jointly,
to purchase from the Company, at a purchase price of 97.5% of the principal
amount thereof plus accrued interest from January 21, 1999 to the Closing Date
(as hereinafter defined), the respective principal amounts of the Offered
Securities set forth opposite the names of the several Initial Purchasers in
Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Initial Purchasers in Federal (same day) funds
by wire transfer to an account of the Company at a bank designated by the
Company and acceptable to CSFBC or by official Federal Reserve Bank check or
checks drawn to the order of the Company at the office of Cravath, Swaine &
Moore at 9:00 A.M. (New York time), on January 21, 1999, or at such other time
not later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "CLOSING DATE", against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities. The Global Securities will be made
available for checking at the office of Cravath, Swaine & Moore at least 24
hours prior to the Closing Date.
4. REPRESENTATIONS BY INITIAL PURCHASERS; RESALE BY INITIAL
PURCHASERS. (a) Each Initial Purchaser severally represents and warrants to the
Company that it is an "ACCREDITED INVESTOR" within the meaning of Regulation D
under the Securities Act.
(b) Each Initial Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may
not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. Each Initial Purchaser severally
represents and agrees that it has offered and sold the Offered
Securities and will offer and sell the Offered Securities as part of
its distribution, only in accordance with Rule 144A ("RULE 144A") or
Rule 903 under the Securities Act. Accordingly, neither such Initial
Purchaser nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed selling efforts
with respect to the Offered Securities, and such Initial Purchaser, its
affiliates and all persons acting on its or their behalf have complied
and will comply with the offering restrictions requirement of
Regulation S. Terms used in this subsection (b) have the meanings given
to them by Regulation S.
(c) Each Initial Purchaser severally agrees that it and each of
its affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Initial Purchaser or
affiliates of the other Initial Purchaser or with the prior written
consent of the Company.
(d) Each Initial Purchaser severally agrees that it and each of
its affiliates will not offer or sell the Offered Securities by means
of any form of general solicitation or general advertising, within the
meaning of Rule 502(c) under the Securities Act, including, but not
limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or (ii) any seminar or meeting
whose attendees have been invited by any general solicitation or
general advertising. Each Initial Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect
that the resale of such Offered
6
Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Initial Purchasers severally represents and agrees
that (i) it has not offered or sold and prior to the date six months
after the date of issue of the Offered Securities will not offer or
sell any Offered Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect
to anything done by it in relation to the Offered Securities in, from
or otherwise involving the United Kingdom; and (iii) it has only issued
or passed on and will only issue or pass on in the United Kingdom any
document received by it in connection with the issue of the Offered
Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Initial Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent, which consent
shall not be unreasonably withheld or delayed. If, at any time prior to
the completion of the resale of the Offered Securities by the Initial
Purchasers any event occurs as a result of which the Offering Document
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any such
time to amend or supplement the Offering Document to comply with any
applicable law, the Company promptly will notify CSFBC of such event
and promptly will prepare, at its own expense, an amendment or
supplement which will correct such statement or omission or effect such
compliance. Neither CSFBC's consent to, nor the Initial Purchasers'
delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6 of this Agreement.
(b) The Company will furnish to CSFBC copies of the Offering
Document and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as CSFBC reasonably
requests, and the Company will furnish to CSFBC on the date hereof
three copies of the Offering Document signed by a duly authorized
officer of the Company, one of which will include the independent
accountants' reports therein manually signed by such independent
accountants. At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, the Company will promptly furnish or
cause to be furnished to CSFBC (and, upon request, to each of the other
Initial Purchasers) and, upon request of holders and prospective
purchasers of the Offered Securities, to such holders and purchasers,
copies of the information required to be delivered to holders and
prospective purchasers of the Offered Securities pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection
with resales by such holders of the Offered Securities. The Company
will pay the expenses of printing and distributing to the Initial
Purchasers all such documents.
(c) The Company will arrange with the cooperation of the Initial
Purchasers for the qualification of the Offered Securities for sale and
the determination of their eligibility for investment under the laws of
such jurisdictions in the United States and Canada as CSFBC designates
and will continue such qualifications in effect so long as required for
the resale of the Offered Securities by the Initial Purchasers provided
that the Company will not be required to
7
qualify such Offered Securities if such qualification would require the
Company to as a foreign corporation or to file a general consent to
service of process or subject itself to taxation in any such state.
(d) During the period of three years hereafter, the Company will
furnish to CSFBC and, upon request, to each of the other Initial
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the
Company will furnish to CSFBC and, upon request, to each of the other
Initial Purchasers (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as CSFBC may
reasonably request.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFBC, each of the other Initial
Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Registration
Rights Agreement and the Indenture, including (i) the fees and expenses
of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities and, as applicable, the
Exchange Securities (as defined in the Registration Rights Agreement),
the preparation and printing of this Agreement, the Securities, the
Indenture, the Offering Document and amendments and supplements
thereto, and any other document relating to the issuance, offer, sale
and delivery of the Offered Securities and, as applicable, the Exchange
Securities; (iii) the cost of qualifying the Offered Securities for
trading in The Portal-SM- Market ("PORTAL") of The Nasdaq Stock Market,
Inc. and any expenses incidental thereto, (iv) the cost of any
advertising approved in writing by the Company in connection with the
issue of the Offered Securities, (v) for any expenses (including
reasonable fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities or the Exchange Securities
for sale under the laws of such jurisdictions as in writing by the
Company CSFBC designates and the printing of memoranda relating
thereto, (vi) for any fees charged by investment rating agencies for
the rating of the Offered Securities or the Exchange Securities, and
(vii) for expenses incurred in distributing the Offering Document
(including any amendments and supplements thereto) to the Initial
Purchasers. The Company will reimburse the Initial Purchasers for all
reasonable travel expenses of the Initial Purchasers and the Company's
officers and employees (to the extent incurred by the Initial
Purchasers) and any other reasonable expenses of the Initial Purchasers
and the Company (to the extent incurred by the Initial Purchasers) in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Initial Purchasers of the completion
of the resale of the Offered Securities, neither the Company nor any of
its affiliates has or will, either alone or with one or more other
persons, bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose
of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
8
(j) For a period of 120 days after the date of the initial
offering of the Offered Securities by the Initial Purchasers, the
Company will not, without the prior written consent of CSFBC, which
consent shall not be unreasonably withheld, offer, sell, contract to
sell, pledge, or otherwise dispose of, directly or indirectly, any
United States dollar-denominated debt securities issued or guaranteed
by the Company and having a maturity of more than one year from the
date of issue, except issuances of (i) Offered Securities pursuant to
the conversion or exchange of convertible or exchangeable securities or
the exercise of warrants or options, in each case outstanding on the
date hereof, (ii) the Exchange Securities, (iii) any debt securities of
another entity acquired by the Company or assured by the Company in
connection with an acquisition of the assets of such entity, which debt
securities were (a) existing prior to such acquisition; and (b) were
not issued in connection with, or in contemplation of, such
acquisition), (iv) grants of employee stock options pursuant to the
terms of a plan in effect on the date hereof, issuances of Offered
Securities pursuant to the exercise of such options or issuances of
Offered Securities pursuant to the Company's dividend reinvestment
plan. The Company will not at any time offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any securities
under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of the
Securities Act to cease to be applicable to the offer and sale of the
Offered Securities.
6. CONDITIONS OF THE OBLIGATION OF THE INITIAL PURCHASERS. The
obligation of the several Initial Purchasers to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company herein, to the accuracy of the statements of officers
of the Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Initial Purchasers shall have received a letter, dated the
date of this Agreement, of PricewaterhouseCoopers LLP confirming that
they are independent public accountants within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder ("RULES AND REGULATIONS") and to the effect that:
(i) In their opinion the financial statements and schedules
of the Company examined by them and included in the Offering
Document comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on the
unaudited financial statements of the Company included in the
Offering Document;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements included in the
Offering Document do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and
Regulations or any material modifications should be made to
such unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent date, there was
any change in the capital stock or
9
any increase in short-term indebtedness or long-term debt of
the Company and its consolidated Subsidiaries or, at the date
of the latest available balance sheet read by such
accountants, there was any decrease in consolidated (i) total
current assets minus total current liabilities or (ii) total
shareholders' equity (or deficit), as compared with amounts
shown on the latest balance sheet included in the Offering
Document; or
(C) for the period from the closing date of the latest
statement of operations included in the Offering Document to
the closing date of the latest available statement of
operations read by such accountants there were any decreases,
as compared with the corresponding period of the previous
year, in consolidated net sales, in consolidated income (or
loss) from continuing operations, in the total amounts of
consolidated net income (or loss), except in all cases set
forth in clauses (B) and (C) above for changes, increases or
decreases which are described in such letter;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Offering Document, as agreed upon
with the Initial Purchasers (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation), with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter; and
(v) on the basis of a reading of the pro forma financial
statements, carrying out certain specified procedures, reading of
minutes, inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and proving
the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to
believe that the pro forma financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X under the Securities
Act or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements or on the pro forma basis described in the notes
thereto.
(b) The Initial Purchasers shall have received a letter, dated
between the date of this Agreement and the Closing Date, of Deloitte &
Touche LLP confirming that they are independent public accountants
within the meaning of the Securities Act and the applicable published
Rules and Regulations and in form and substance reasonably satisfactory
to the Initial Purchasers.
(c) The Initial Purchasers shall have received a letter, dated the
date of this Agreement, of Arthur Andersen LLP confirming that they are
independent public accountants within the meaning of the Securities Act
and the applicable published Rules and Regulations and in form and
substance reasonably satisfactory to the Initial Purchasers.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) a change in U.S. or international
financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the judgment of CSFBC, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market
or in respect of dealings in the secondary market, or (ii) any change,
or any development or event involving a prospective change, in the
condition
10
(financial or other), business, properties or results of operations of
the Company or its Subsidiaries taken as a whole which, in the judgment
of a majority in interest of the Initial Purchasers, including CSFBC,
is material and adverse and makes it impractical or inadvisable to
proceed with the completion of the offering or the sale of and payment
for the Offered Securities; (iii) any downgrading in the rating of any
debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iv) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal or New York authorities; or (vi) any outbreak
or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of
a majority in interest of the Initial Purchasers, including CSFBC, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with the
completion of the offering or sale of and payment for the Offered
Securities.
(e) The Initial Purchasers shall have received an opinion, dated
the Closing Date, of Ira J. Krakower, Esq., General Counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
Delaware;
(ii) The Company is duly qualified as a foreign corporation
to transact business and is in good standing as a foreign
corporation under the laws of each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result
in a Material Adverse Effect and except for jurisdictions not
recognizing the legal concept of good standing;
(iii) Clark-Schwebel Corporation, a Delaware corporation
("Clark-Schwebel") has been duly incorporated and is validly
existing and in good standing under the laws of the State of
Delaware;
(iv) Clark-Schwebel is duly qualified as a foreign
corporation to transact business and is in good standing as a
foreign corporation under the laws of each jurisdiction in which
such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where
the failure to so qualify or to be in good standing would not
result in a Material Adverse Effect and except for jurisdictions
not recognizing the legal concept of good standing;
(v) Clark-Schwebel has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Offering Circular;
(vi) There is no action, suit or proceeding or, to the
knowledge of such counsel, inquiry or investigation before or by
any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of such counsel, threatened, against
or affecting the Company or any of its subsidiaries, which would,
individually or in the aggregate, have a Material Adverse Effect,
or which might reasonably be expected to materially and adversely
affect the properties or assets thereof or the transactions
contemplated by this Agreement or the performance by the Company
of its obligations
11
thereunder or under the Securities or in connection with the
transactions contemplated thereby;
(vii) The execution and delivery by the Company of the
Securities and of each of the Transaction Documents, and the
performance by the Company of its obligations thereunder, will not
(a) to the best knowledge of such counsel, whether with or without
the giving of notice or lapse of time or both, conflict with or
constitute a breach of or a default under (except for Permitted
Liens) or result in the creation or imposition of any lien, charge
or encumbrance (except for Permitted Liens) upon any property or
assets of the Company or Clark-Schwebel pursuant to any material
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other material agreement or
instrument to which the Company or Clark-Schwebel is a party or by
which it or any of them may be bound, or to which any of the
property or assets of the Company or Clark-Schwebel is subject
(except for such conflicts, breaches or defaults, that would not
have a Material Adverse Effect) and except that such counsel does
not express any opinion with respect to the financial ratios or
tests or any aspects of the financial condition or results of
operations of the Company and Clark-Schwebel to the extent the
determination of such conflict, breach or default requires
quantitative determination; and
(viii) Such counsel does not know of any legal or
governmental proceeding required to be described in the Offering
Circular which are not described as required or of any contracts
or documents of a character required to be described in the
Offering Document which are not described and filed as required.
(f) The Initial Purchasers shall have received an opinion, dated
the Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel
for the Company to the effect, that:
(i) The Company has the corporate power and corporate
authority to own, lease and operate its properties and to conduct
its business as described in the Offering Circular;
(ii) The Company has the corporate power and corporate
authority to execute, deliver and perform all its obligations
under this Agreement, the Registration Rights Agreement, the
Indenture and the Offered Securities;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company, enforceable against the Company in accordance with
its terms, except to the extent that (a) enforcement thereof may
be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity),
and (b) the enforceability, under certain circumstances, of
provisions imposing a payment obligation pending the ability of
the Company to comply timely with its registration obligations may
be limited by applicable law;
(v) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent that
(a) enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect
12
relating to creditor's rights generally and (ii) general
principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity), (b) the
enforceability, under certain circumstances, of provisions
imposing a payment obligation pending the ability of the Company
to comply timely with its registration obligations may be limited
by applicable law, and (c) the enforceability of indemnification
and contribution provisions may be limited by Federal and state
securities laws or the public policies underlying such laws;
(vi) The issuance and sale of the Securities have been duly
authorized by the Company, and the Offered Securities, when
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Initial Purchasers
in accordance with the terms of this Agreement, will be valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with
their terms, except to the extent that (a) enforcement thereof may
be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity)
and (b) the enforceability, under certain circumstances, of
provisions imposing a payment obligation pending the ability of
the Company to comply timely with its registration obligations may
be limited by applicable law;
(vii) The execution and delivery by the Company of the
Offered Securities and each of the Transaction Documents to which
it is a party, and the consummation by the Company of the
transactions contemplated thereby, will not conflict with or
result in any breach or violation of, or constitute a default
under, (A)(i) the Restated Certificate of Incorporation or By-laws
of the Company or (ii) the certificate of incorporation or by-laws
of Clark-Schwebel or (B) any Applicable Law;
(viii) No consent, approval, authorization, order, decree,
registration or qualification of or filing with any court or
governmental authority or agency is required under Applicable Laws
for the valid authorization, issuance, sale and delivery of the
Offered Securities by the Company or is required for the valid
execution and delivery by the Company of the Transaction Documents
and the consummation by the Company of the transactions
contemplated thereby;
(ix) Assuming (i) the accuracy of the representations and
warranties of the Company set forth in Sections 2(s) and (u) of
this Agreement and of the Initial Purchasers' representations and
warranties set forth in Section 4 of this Agreement, (ii) the due
performance by the Company of the covenants and agreements set
forth in Sections 2(s) and (u) and 3(j) of this Agreement and the
due performance by the Initial Purchasers of the covenants and
agreements set forth in Section 4(b) and (c) of this Agreement,
(iii) the Initial Purchasers' compliance with the offering and
transfer procedures and restrictions described in the Offering
Circular, (iv) the accuracy of the representations and warranties
made in accordance with this Agreement and the Offering Circular
by purchasers to whom the Initial Purchasers initially resell the
Offered Securities and (v) that purchasers to whom the Initial
Purchasers initially resell the Offered Securities receive a copy
of the Offering Circular prior to or contemporaneously with such
sale, the offer, sale and delivery of the Offered Securities to
you in the manner contemplated by the Purchase Agreement and the
Offering Circular, and the initial resale of the Offered
Securities by the Initial Purchasers in the manner contemplated in
the Offering Circular and this Agreement, do not require
qualification under the Trust Indenture Act of 1939, as amended,
it being understood that such counsel does not express any
opinions to any subsequent resale of any Offered Security; and
13
(x) The Company is not and, after giving effect to the
issuance and sale of the Offered Securities and the application of
the proceeds therefrom as described in the Offering Circular, will
not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
Such counsel shall also state that such counsel has participated in
conferences with directors, officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Initial Purchasers and representatives of counsel for the
Initial Purchasers, at which conferences the contents of the Offering Document
and related matters were discussed and, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Offering Document, and has made no
independent check or verification thereof (except to the extent set forth in
paragraph (ii) above with respect to the description of the Offered Securities)
on the basis of the foregoing, no facts have come to such counsel's attention
which have caused such counsel to believe that the Offering Document, as of its
date and as of the Closing Date, contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances in which they were made, not misleading
(it being understood that such counsel need express no view with respect to the
financial statements and the notes related thereto).
As used in Sections 6(e) and 6(f), the terms "Transaction Documents"
shall mean the Indenture, the Registration Rights Agreement and this Agreement
and "Applicable Laws" shall mean the laws of the State of New York, the Federal
laws of the United States and the General Corporation law of the State of
Delaware.
(g) The Initial Purchasers shall have received from Cravath,
Swaine & Moore, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities offered on such
Closing Date, the Offering Circular, the exemption from registration
for the offer and sale of the Offered Securities by the Company to the
several Initial Purchasers and the resales by the several Initial
Purchasers as contemplated hereby and other related matters as CSFBC
may require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(h) The Initial Purchasers shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date; the
Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such
Closing Date; and, subsequent to the date of the most recent financial
statements in the Offering Document, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as a whole except as set forth in or contemplated by the Offering
Document or as described in such certificate.
(i) The Initial Purchasers shall have received a letter, dated the
Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to the Closing Date for the purposes of this
subsection.
(j) Each of the Senior Credit Facility and the indenture governing
the issuance of the Ciba Notes shall have been amended and/or the
Company shall have obtained the necessary
14
consents from the parties thereto in order to avoid any default under
the Senior Credit Facility or such indenture in connection with the
issuance and sale of the Offered Securities.
(k) The Registration Rights Agreement shall have been duly
authorized, executed and delivered by the Company.
The Company shall furnish the Initial Purchasers with such conformed
copies of such opinions, certificates, letters and documents as the Initial
Purchasers reasonably request. CSFBC may in its sole discretion waive compliance
with any condition to the obligations of the Initial Purchasers hereunder.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Initial Purchaser, its partners, directors and officers
and each person, if any, who controls such Initial Purchaser within the meaning
of Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Initial Purchaser may become
subject, under the Securities Act or the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Offering Document, or any amendment or
supplement thereto or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, including any losses, claims,
damages or liabilities arising out of or based upon the Company's failure to
perform its obligations under Section 5(a) of this Agreement, and will reimburse
such Initial Purchaser for any legal or other expenses reasonably incurred by
such Initial Purchaser in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage, liability or actions in respect
thereof arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Initial Purchaser through CSFBC specifically for use therein, it
being understood and agreed that the only such information consists of the
information described as such in subsection (b) below; PROVIDED FURTHER,
HOWEVER, that the foregoing indemnity with respect to the Preliminary Offering
Circular shall not inure to the benefit of the Initial Purchaser from whom the
person asserting any such losses, claims, damages, liabilities or actions in
respect thereof purchased Offered Securities to the extent that any such losses,
claims, damages, liabilities or actions in respect thereof of such Initial
Purchaser result from a fact that such Initial Purchaser sold Offered Securities
to a person in an initial resale to whom there was not sent or given, at or
prior to the written confirmation of the sale of such Offered Securities, a copy
of the Offering Circular (as amended or supplemented), if the Company had
previously furnished a copy of such amendments or supplements to such Initial
Purchaser prior to confirmation of the sale of such Offered Securities to such
person by such Initial Purchaser, and the losses, claims, damages, liabilities
or actions in respect thereof of such Initial Purchaser result from an untrue
statement or omission of a material fact contained in the Preliminary Offering
Circular, which was corrected in the Offering Circular.
(b) Each Initial Purchaser will severally and not jointly
indemnify and hold harmless the Company, its directors and officers and
each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages
or liabilities to which the Company may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or
any amendment or supplement thereto, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Initial Purchaser through CSFBC specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
15
claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by
any Initial Purchaser consists of the following information in the
Offering Document: paragraphs three, six, nine and ten, and the third
sentence of paragraph eight under the caption "Plan of Distribution";
PROVIDED, HOWEVER, that the Initial Purchasers shall not be liable for
any losses, claims, damages or liabilities arising out of or based upon
the Company's failure to perform its obligations under Section 5(a) of
this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above, except to the extent the indemnifying
party is materially prejudiced by such failure. In case any such action
is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation. In no event shall an indemnifying party be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
of any pending or threatened action in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Initial Purchasers on the other from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one
hand and the Initial Purchaser on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Initial Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total discounts
and commissions received by the Initial Purchasers from the Company
under this Agreement. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company
or the Initial Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to
in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), such Initial
Purchaser shall not be required to contribute any amount in excess of
the amount by which the total price at which the Offered Securities
purchased by it were resold exceeds the amount of any damages which
such Initial Purchaser has otherwise been required to pay by reason of
such
16
untrue or alleged untrue statement or omission or alleged omission.
The Initial Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Initial Purchaser within the meaning of the
Securities Act or the Exchange Act; and the obligations of the Initial
Purchasers under this Section shall be in addition to any liability
which the respective Initial Purchasers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act.
8. DEFAULT OF INITIAL PURCHASERS. If any Initial Purchaser or
Purchasers default in their obligations to purchase Offered Securities and the
aggregate principal amount of Offered Securities that such defaulting Initial
Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the
total principal amount of Offered Securities, CSFBC may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by other
persons, including any of the Initial Purchasers, but if no such arrangements
are made by the Closing Date, the non-defaulting Initial Purchasers shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Offered Securities that such defaulting Initial Purchasers agreed
but failed to purchase. If any Initial Purchaser or Purchasers so default and
the aggregate principal amount of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Offered
Securities and arrangements satisfactory to CSFBC and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Initial Purchaser or the Company, except as provided
in Section 9. As used in this Agreement, the term "INITIAL PURCHASER" includes
any person substituted for a Initial Purchaser under this Section. Nothing
herein will relieve a defaulting Initial Purchaser from liability for its
default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Initial Purchasers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Initial Purchaser, the Company or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Securities. If for any reason the
purchase of the Offered Securities by the Initial Purchasers is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5 and the respective obligations of the Company and
the Initial Purchasers pursuant to Section 7 shall remain in effect and if any
Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Initial Purchasers is
not consummated for any reason other than solely because of the occurrence of
any event specified in clause (iv), (v) or (vi) of Section 6(d), the Company
will reimburse the Initial Purchasers for all out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by them in connection
with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Initial Purchasers will be mailed, delivered or telegraphed and
confirmed to the Initial Purchasers, c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department - Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Hexcel Corporation, Two
Stamford Plaza, 281 Tresser Boulevard, Stamford, CT 06901, Attention: General
Counsel; PROVIDED, HOWEVER, that any notice to an Initial Purchaser pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such Initial
Purchaser.
17
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder, except that holders of
Offered Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against the
Company as if such holders were parties hereto.
12. REPRESENTATION OF INITIAL PURCHASERS. You will act for the several
Initial Purchasers in connection with this purchase, and any action under this
Agreement taken by you jointly or by CSFBC will be binding upon all of the
Initial Purchasers.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
18
If the foregoing is in accordance with the Initial Purchasers'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company and the Initial Purchasers in accordance with its terms.
Very truly yours,
HEXCEL CORPORATION,
by: /s/ Bruce D. Herman
-------------------------------
Name: Bruce D. Herman
Title: Treasurer
The foregoing Purchase Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON SMITH BARNEY INC.
Acting on behalf of themselves and as the
Representatives of the several Initial Purchasers
CREDIT SUISSE FIRST BOSTON CORPORATION
by: /s/ Joseph D. Carrabino, Jr.
--------------------------------------------
Name: Joseph D. Carrabino, Jr.
Title: Managing Director
19
SCHEDULE A
PRINCIPAL AMOUNT OF
INITIAL PURCHASERS OFFERED SECURITIES
------------------ ------------------
Credit Suisse First Boston Corporation....................... $156,000,000
Salomon Smith Barney Inc..................................... $ 84,000,000
-------------
Total............................. $240,000,000
20
SCHEDULE B
SUBSIDIARY PLACE OF INCORPORATION
---------- ----------------------
Clark-Schwebel Corporation Delaware
Hexcel Composites Limited United Kingdom
Hexcel Fabrics S.A. France
Hexcel Composites S.A. France
Hexcel Composites S.A. Spain
21