EXHIBIT 2
STOCK PURCHASE AGREEMENT
DATED AS OF
OCTOBER 11, 2000
BY AND AMONG
LXH, L.L.C.,
LXH II, L.L.C.,
CIBA SPECIALTY CHEMICALS HOLDING INC.,
CIBA SPECIALTY CHEMICALS INC.
and
CIBA SPECIALTY CHEMICALS CORPORATION
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of October
11, 2000, by and between LXH, L.L.C., a Delaware limited liability company
("LXH"), LXH II, L.L.C., a Delaware limited liability company (together
with LXH, the "Purchasers"), Ciba Specialty Chemicals Holding Inc., a
corporation organized under the laws of Switzerland ("Ciba"), Ciba
Specialty Chemicals Inc., a corporation organized under the laws of
Switzerland and wholly-owned subsidiary of Ciba ("Ciba SCI") and Ciba
Specialty Chemicals Corporation, a corporation organized under the laws of
Delaware and wholly-owned subsidiary of Ciba (together with Ciba SCI, the
"Sellers").
W I T N E S S E T H :
WHEREAS, the Sellers beneficially own an aggregate of 18,021,748
shares of common stock, par value $0.01 per share (the "Common Stock"), of
Hexcel Corporation (the "Company");
WHEREAS, the Company and Ciba are parties to a governance
agreement, dated as of February 29, 1996, pursuant to which, among other
things, Ciba may sell all or a portion of the shares of Common Stock
beneficially owned by it with the approval and consent of certain directors
of the Company;
WHEREAS, upon the terms and subject to the conditions set forth
in this Agreement, the Sellers wish to sell to the Purchasers and the
Purchasers wish to purchase from the Sellers a number of shares of Common
Stock beneficially owned by the Sellers determined in accordance with
Section 1.1 hereof (the "Shares");
WHEREAS, the Independent Directors have approved and consented to
the sale of the Shares by the Sellers to the Purchasers on the terms set
forth herein; and
WHEREAS, the Purchasers and the Sellers desire to provide for the
purchase and sale of the Shares and to establish certain rights and
obligations in connection therewith.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
ISSUANCE AND SALE OF SHARES
1.1. Purchase and Sale. Upon the terms and subject to the
conditions set forth herein, at the Closing (as defined below) the Sellers
shall sell to each Purchaser and such Purchaser shall purchase from the
Sellers the number of Shares set forth opposite such Purchaser's name on
Schedule 1.1 for a price per Share equal to $11.00 or an aggregate purchase
price of $159,775,000, (the "Purchase Price"). Each Purchaser shall pay
such Purchaser's portion of the Purchase Price to the Sellers by delivering
to the Sellers (x) cash and (y) a secured promissory note, in the form of
Exhibit A hereto (the "Notes"), in each case in the aggregate amounts set
forth opposite such Purchaser's name on Schedule 1.1; provided, however,
that the Purchasers shall have the right to reallocate between the
Purchasers the Shares to be purchased by each Purchaser by delivering
written notice of such reallocation to Ciba and the Sellers not less than
three days prior to the Closing, so long as such reallocation does not
change the total number of Shares being acquired hereunder or the Purchase
Price. At least three days prior to the Closing, the Sellers shall deliver
to the Purchasers a schedule (which schedule shall be binding on the
Purchasers) which shall set forth the number of Shares being sold by each
Seller hereunder, the portion of the Purchase Price payable to each such
Seller and the allocation of cash and the principal amount of Notes payable
to each such Seller; provided, however, that such schedule shall not change
the total number of Shares being acquired by each Purchaser, the portion of
the Purchase Price being paid by each Purchaser or the total cash amount or
aggregate principal amount of Notes being delivered hereunder.
Notwithstanding anything to the contrary set forth above, the aggregate
number of Shares purchased by the Purchasers hereunder shall be reduced to
the extent required to prevent the Purchasers from Beneficially Owning in
excess of 39.3% of the outstanding shares of Common Stock immediately
following the Closing and, in such event, the Purchase Price (and the
amount of cash and the aggregate principal amount of Notes issued by the
Purchasers) shall be appropriately reduced based on the per Share price set
forth above.
1.2. The Closing; Deliveries. (a) The closing of the purchase and
sale of the Shares hereunder (the "Closing") shall take place at the
offices of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 9:00 a.m. as promptly as practicable following
the satisfaction or waiver of the conditions set forth in Article V (other
than those conditions that by their nature are to be satisfied at the
Closing, but subject to the satisfaction or waiver of those conditions),
but no earlier than twenty days after the date hereof and no later than the
Termination Date (as defined below), or at such other place, time and/or
date as shall be mutually agreed by Ciba, the Sellers and the Purchasers
(the date of the Closing, the "Closing Date").
(b) At the Closing, each Seller shall deliver to each Purchaser
one or more certificates representing the Shares being sold by such Seller
to such Purchaser duly endorsed for transfer in blank or accompanied by
stock powers duly endorsed in blank, with any required stock transfer
stamps attached, in an aggregate amount equal to the number of Shares being
purchased by such Purchaser hereunder. Delivery of such certificates shall
be made against receipt by such Seller of the portion of the Purchase Price
payable therefor to such Seller. The cash portion of the Purchase Price
shall be paid by wire transfer to an account or accounts designated by the
Sellers at least three business days prior to the Closing Date.
(c) The Sellers shall be responsible for and shall pay any sales,
use, transfer, documentary or other similar taxes that relate to the
purchase and sale of the Shares hereunder.
1.3. Capitalized Terms. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in Section 8.1.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Ciba and each Seller hereby represents and warrants to each
Purchaser, as of the date hereof and as of the Closing, as follows:
2.1. Title to Shares. Such Seller has good and valid title to the
Shares being sold by such Seller to each Purchaser hereunder, free and
clear of all liens, charges, claims, security interests, restrictions,
options, proxies, voting trusts or other encumbrances ("Encumbrances")
other than Encumbrances that will be released prior to or simultaneously
with the Closing. Assuming each Purchaser has the requisite power and
authority to be the lawful owner of such Shares, upon delivery to each
Purchaser at the Closing of certificates representing such Shares, and upon
such Seller's receipt of the Purchase Price for such Shares, each Purchaser
will acquire all of such Seller's right, title and interest in and to the
Shares being sold to each Purchaser and will receive good and valid title
to such Shares, free and clear of any and all Encumbrances created by such
Seller.
2.2. Organization. Each of Ciba and such Seller is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization or incorporation and has the requisite
corporate power and authority to carry on its business as it is now being
conducted.
2.3. Due Authorization. Each of Ciba and such Seller has all
right, power and authority to enter into this Agreement and each of the
other Transaction Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by
each of Ciba and such Seller of this Agreement and each of the other
Transaction Documents to which it is a party, the sale and delivery of the
Shares being sold by such Seller to each Purchaser hereunder and the
compliance by each of Ciba and such Seller with each of the provisions of
this Agreement and each of the other Transaction Documents to which it is a
party have been duly authorized by all necessary corporate action of such
party. This Agreement has been, and each of the other Transaction Documents
to which each of Ciba and such Seller is a party when executed and
delivered by each of Ciba and such Seller will be, duly and validly
executed and delivered by such party, and this Agreement constitutes, and
each of such other Transaction Documents when executed and delivered by
each of Ciba and such Seller will constitute, a valid and binding agreement
of such party enforceable against such party in accordance with its terms
except as such enforcement is limited by bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors' rights generally and
for limitations imposed by general principles of equity.
2.4. Consents, No Violations. Neither the execution, delivery or
performance by either Ciba or such Seller of this Agreement or any of the
other Transaction Documents to which it is a party nor the consummation of
the transactions contemplated hereby or thereby will (a) conflict with, or
result in a breach or a violation of, any provision of the certificate of
incorporation or by-laws or other organizational documents of either Ciba
or such Seller, (b) constitute, with or without notice or the passage of
time or both, a breach, violation or default, create an Encumbrance, or
give rise to any right of termination, modification, cancellation,
prepayment, suspension, limitation, revocation or acceleration, under (i)
any Law or (ii) any provision of any material agreement or other instrument
to which either Ciba or such Seller is a party or pursuant to which either
Ciba or such Seller or any of its assets or properties is subject, or (c)
except for any required filing under the HSR Act and those consents waived
or obtained prior to or at the Closing, require any consent, approval or
authorization of, notification to, filing with, or exemption or waiver by,
any Governmental Entity or any other Person on the part of either Ciba or
such Seller.
2.5. Brokers or Finders. Except for Deutsche Bank, whose fees
will be paid by Ciba and the Sellers, upon the consummation of the
transactions contemplated by this Agreement, no agent, broker, investment
banker or other Person is or will be entitled to any broker's or finder's
fee or any other commission or similar fee from Ciba or such Seller in
connection with any of the transactions contemplated by this Agreement or
the other Transaction Documents.
2.6. Disclosure. There is no fact or information relating to the
Company or any of its subsidiaries, actually known to Ciba or such Seller,
that would reasonably be expected to have a Material Adverse Effect and
that has not been disclosed to the Purchasers by Ciba or such Seller.
2.7. Qualified Purchaser Status. Such Seller is a "qualified
purchaser" as defined in Section 2(51)(A)(iv) of the Investment Company
Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby represents and warrants to Ciba and each
Seller, severally and not jointly, as of the date hereof and as of the
Closing, as follows:
3.1. Organization. Such Purchaser is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the requisite power and authority to carry on its
business as it is now being conducted.
3.2. Due Authorization. Such Purchaser has all right, power and
authority to enter into this Agreement and each of the other Transaction
Documents to which it is a party and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by such
Purchaser of this Agreement and each of the other Transaction Documents to
which it is a party, the purchase of the Shares being purchased by such
Purchaser and the compliance by such Purchaser with each of the provisions
of this Agreement and each of the Transaction Documents to which it is a
party (a) are within the power and authority of such Purchaser and (b) have
been duly authorized by all necessary action on the part of such Purchaser.
This Agreement has been, and each of the other Transaction Documents to
which it is a party when executed and delivered by such Purchaser will be,
duly and validly executed and delivered by such Purchaser, and this
Agreement constitutes, and each of such other Transaction Documents when
executed and delivered by such Purchaser will constitute, a valid and
binding agreement of such Purchaser enforceable against such Purchaser in
accordance with its respective terms except as such enforcement is limited
by bankruptcy, insolvency and other similar laws affecting the enforcement
of creditors' rights generally and for limitations imposed by general
principles of equity.
3.3. Consents, No Violations. Neither the execution, delivery or
performance by such Purchaser of this Agreement or any of the other
Transaction Documents to which it is a party nor the consummation of the
transactions contemplated hereby or thereby will (a) conflict with, or
result in a breach or a violation of, any provision of the organizational
documents of such Purchaser, (b) constitute, with or without notice or the
passage of time or both, a breach, violation or default, create an
Encumbrance, or give rise to any right of termination, modification,
cancellation, prepayment, suspension, limitation, revocation or
acceleration, under (i) any Law, or (ii) any provision of any material
agreement or other instrument to which such Purchaser is a party or
pursuant to which such Purchaser or its assets or properties is subject, or
(c) except for any required filing under the HSR Act, the German Act
Against Restraints of Competition, and any other foreign governmental and
regulatory filings, notices and approvals required to be made or obtained
as contemplated by Section 5.1(d) hereof, and those consents waived or
obtained, require any consent, approval or authorization of, notification
to, filing with, or exemption or waiver by, any Governmental Entity or any
other Person on the part of such Purchaser.
3.4. No Brokers or Finders. No agent, broker, investment banker
or other Person is or will be entitled to any broker's or finder's fee or
any other commission or similar fee from such Purchaser in connection with
the transactions contemplated by this Agreement or the other Transaction
Documents.
3.5. Availability of Funds. Such Purchaser has, or will have
prior to the Closing, available sufficient funds to pay such Purchaser's
cash portion of the Purchase Price.
3.6. Restricted Securities. Such Purchaser is purchasing the
Shares being purchased by it for investment and not with a view to any
public resale or other distribution thereof, except in compliance with
applicable securities laws.
ARTICLE IV
PRE-CLOSING COVENANTS
4.1. Ownership of Shares. Ciba and the Sellers shall retain
beneficial and record ownership of the Shares during the period from the
date of this Agreement and continuing until the earlier of the termination
of this Agreement or the Closing. Other than in connection with the
transactions contemplated by this Agreement, Ciba and the Sellers shall
not, and shall not authorize any of their affiliates, officers or directors
(other than such officers and directors acting in their capacities as
officers or directors of the Company) or any other Person on its behalf to,
directly or indirectly, (i) sell, assign, transfer, encumber or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment,
transfer, encumbrance or other disposition of, any of the Shares or any
economic interest therein or (ii) seek, solicit, propose, facilitate,
participate in any discussions or negotiations regarding, or furnish any
information with respect to any transaction or arrangement described in
clause (i). Ciba and the Sellers will notify each Purchaser promptly (and
provide all details reasonably requested by such Purchaser) if any of Ciba
or the Sellers is approached or solicited, directly or indirectly, by any
person with respect to any of the foregoing.
4.2. HSR Act; German Filing; Cooperation. The Purchasers shall
make or cause to be made all necessary filings under the HSR Act and the
German Act Against Restraints of Competition and shall use their reasonable
best efforts to take, or cause to be taken, all actions necessary, proper
or advisable in connection therewith to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement.
The Purchasers, Ciba and the Sellers agree to use their reasonable best
efforts to take, or cause to be taken, all such further actions as shall be
necessary, proper or advisable to make effective and consummate as promptly
as practicable the transactions contemplated by this Agreement.
4.3. Consents; Approvals. Ciba and each of the Sellers shall use
their reasonable best efforts to obtain, or to assist the Company in
obtaining, all consents, waivers, exemptions, approvals, authorizations or
orders (collectively, "Consents") (including, without limitation (i)
Consents required to avoid any breach, violation, default, encumbrance or
right of termination, modification, cancellation, prepayment, suspension,
limitation, revocation or acceleration of any material agreement or
instrument to which Ciba or such Seller is a party or its properties or
assets are bound, (ii) all Consents pursuant to the Company's financing
documents, including without limitation, all indentures and credit
agreements of the Company, and (iii) all United States and foreign
governmental and regulatory rulings and approvals).
4.4. FIRPTA Certificate. Prior to the Closing, the Sellers shall
cause to be delivered to the Purchasers the certificate described in Treas.
Reg. Section 1.1445-2(c)(3), duly executed and acknowledged, certifying
that the stock being sold is not a United States real property interest
under Section 897 of the Internal Revenue Code of 1986, as amended.
4.5. Indenture. Prior to or simultaneously with the Closing, Ciba
shall execute and deliver the Consent and Termination Agreement and shall
consent in writing to the amendment to the Indenture in the manner provided
in Section 3.02 of the Consent and Termination Agreement.
ARTICLE V
CONDITIONS
5.1. Conditions to Obligations of the Purchasers, Ciba and the
Sellers. The respective obligations of the Purchasers, Ciba and the Sellers
to consummate the transactions contemplated hereby are subject to the
satisfaction or waiver at or prior to the Closing of each of the following
conditions:
(a) No statute, rule or regulation or order of any court or
administrative agency shall be in effect which prohibits the consummation
of the transactions contemplated hereby;
(b) Any waiting period (and any extension thereof) under the HSR
Act applicable to this Agreement and the transactions contemplated hereby
shall have expired or been terminated;
(c) The German Federal Cartel Office shall have approved the
transactions contemplated hereby; and
(d) The Company and/or the Investors shall have made any other
material foreign governmental and regulatory filings, given all material
notices and obtained any material approvals that the Company and the
Purchasers reasonably agree are required in connection with the
consummation of the transactions contemplated by this Agreement, the
Governance Agreement, the Registration Rights Agreement and the Hexcel
Agreement.
5.2. Conditions to Obligations of the Purchasers. The obligations
of each Purchaser to consummate the transactions contemplated hereby shall
be subject to the satisfaction or waiver at or prior to the Closing of each
of the following conditions:
(a) Each of the representations and warranties of Ciba and the
Sellers contained in this Agreement shall be true and correct in all
material respects when made and as of the Closing (except to the extent
such representations and warranties are made as of a particular date, in
which case such representations and warranties shall have been true and
correct in all material respects as of such date);
(b) Each of Ciba and the Sellers shall have performed, satisfied
and complied in all material respects with all of its covenants and
agreements set forth in this Agreement to be performed, satisfied and
complied with prior to or at the Closing;
(c) Each of Ciba and the Sellers shall have delivered to each
Purchaser an officer's certificate certifying as to Ciba and such Seller's
compliance with the conditions set forth in clauses (a) and (b) of this
Section 5.2;
(d) The transactions contemplated by the Hexcel Agreement shall
be consummated simultaneously with the transactions contemplated hereby and
the Purchasers and the Company shall have executed and delivered the
governance agreement in the form of Exhibit B hereto (the "Governance
Agreement"), the registration rights agreement in the form of Exhibit C
hereto (the "Registration Rights Agreement"), and all other agreements,
documents and instruments required to be delivered in connection therewith;
(e) Each Purchaser and Ciba shall have executed and delivered a
Pledge Agreement in the form of Exhibit D hereto (the "Pledge Agreement");
(f) Such Purchaser shall have received the opinions substantially
in the form set forth on Exhibit E from either Cravath, Swaine & ▇▇▇▇▇,
▇▇▇▇ ▇ . ▇▇▇▇▇▇, Esq. or Switzerland counsel for Ciba and the Sellers;
(g) (i) The Majority Lenders (as defined in the Credit Agreement)
shall have executed an agreement, in form and substance satisfactory to the
Purchasers, consenting to the transactions contemplated hereby and (ii) the
agreements, each dated as of the date hereof, from the Company's employees
set forth on Exhibit F hereto shall be in full force and effect as of the
Closing;
(i) ▇▇. ▇▇▇▇ ▇. ▇▇▇'▇ employment agreement attached hereto as
Exhibit G and all other agreements contemplated thereby shall be in full
force and effect as of the Closing;
(j) The Consent and Termination Agreement in the form attached as
Exhibit H (the "Consent and Termination Agreement") shall have been
executed and delivered by Ciba and the Company and the Indenture shall have
been amended in the manner set forth in Section 3.02 of the Consent and
Termination Agreement; and
(k) Neither the Company nor any of its subsidiaries shall have
suffered any change, event, or development or series of changes, events or
developments which individually or in the aggregate has had or would
reasonably be expected to have a Material Adverse Effect.
5.3. Conditions to Obligations of Ciba and the Sellers. The
obligations of Ciba and the Sellers to consummate the transactions
contemplated hereby shall be subject to the satisfaction or waiver at or
prior to the Closing of each of the following conditions:
(a) Each of the representations and warranties of the Purchasers
contained in this Agreement shall be true and correct when made and as of
the Closing (except to the extent such representations and warranties are
made as of a particular date, in which case such representations and
warranties shall have been true and correct in all material respects as of
such date);
(b) The Purchasers shall have performed, satisfied and complied
with all of its covenants and agreements set forth in this Agreement to be
performed, satisfied and complied with prior to or at the Closing Date;
(c) The Purchasers shall have delivered to each of Ciba and the
Sellers an officer's certificate certifying as to the Purchasers'
compliance with the conditions set forth in clauses (a) and (b) of this
Section 5.3;
(d) The Purchasers shall have executed and delivered the Pledge
Agreement and the Purchasers shall have delivered to Ciba, as collateral
agent, the Shares to be held as collateral security thereunder; and
(e) Ciba and the Sellers shall have received an opinion from
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ substantially in the form of
Exhibit I hereto.
ARTICLE VI
TERMINATION
6.1. Termination. (a) This Agreement may be terminated at any
time prior to the Closing:
(i) by mutual written agreement of (x) Ciba and the Sellers and
(y) the Purchasers;
(ii) by (x) the Purchasers or (y) Ciba and the Sellers, if the
Closing shall not have occurred by the latest of (A) November 9, 2000, (B)
November 27, 2000, if the condition set forth in Section 5.2(g)(i) shall
not have been satisfied on or prior to November 9, 2000, (C) two business
days after the satisfaction of the conditions set forth in Sections 5.1(b),
5.1(c) and 5.1(d) hereof (the latest of such dates, the "Drop Dead Date")
(provided that the right to terminate this Agreement under this Section
6.1(a)(ii) shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of or resulted in the
failure of the Closing to occur on or before such date); provided, however,
that notwithstanding the foregoing, if the Company, by a vote of the
Independent Directors terminates the Hexcel Agreement pursuant to Section
6.1 thereof in connection with the execution of a definitive agreement
relating to an Acquisition Proposal, the Drop Dead Date shall be
automatically extended to the earlier of (1) the business day following the
consummation of the transactions contemplated by the Acquisition Proposal
and (2) the date that is 21 business days following the date such
Acquisition Proposal is abandoned or terminated; provided, however that the
Drop Dead Date shall not, in any case, be extended past the date that is 21
business days following the first anniversary of the date hereof; or
(iii) by (x) the Purchasers or (y) Ciba and the Sellers, if a
court of competent jurisdiction or governmental, regulatory or
administrative agency or commission shall have issued a nonappealable final
order, decree or ruling or taken any other action having the effect of
permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement.
(b) The date of any termination of this Agreement pursuant to
Section 6.1(a) is referred to herein as the "Termination Date".
6.2. Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 6.1(a), this Agreement shall forthwith
become void and there shall be no liability on the part of any party hereto
(or any stockholder, director, officer, partner, employee, agent,
consultant or representative of such party) except as set forth in this
Section 6.2, provided that nothing contained in this Agreement shall
relieve any party from liability for any breach of this Agreement and
provided further that this Section 6.2 and Sections 7.1, 7.2, 7.3, 8.3,
8.12, 8.13 and 8.14 shall survive termination of this Agreement and Section
8.2 shall survive termination of this Agreement to the extent provided
therein.
ARTICLE VII
INDEMNIFICATION
7.1. Survival. The representations and warranties of the parties
hereto contained in this Agreement or in any of the other Transaction
Documents shall survive the Closing and the delivery of the Transaction
Documents. In the case of the representations and warranties made by Ciba,
any Seller or any Purchaser in this Agreement or in any of the other
Transaction Documents, such representations and warranties are being made
severally and not jointly by Ciba and the Sellers or by the Purchasers, as
the case may be. The covenants and agreements of the parties hereto
contained in this Agreement or in any of the other Transaction Documents
shall survive the Closing until performed in accordance with their terms.
7.2. Indemnification. (a) Ciba and the Sellers jointly and
severally shall indemnify, defend and hold harmless the Purchasers, their
Affiliates, and their respective officers, directors, partners, members,
employees, agents, representatives, successors and assigns (each a
"Purchaser Indemnified Person") from and against (I) all Losses incurred or
suffered by a Purchaser Indemnified Person arising from (i) the breach of
any of the representations or warranties made by Ciba or the Sellers in
this Agreement or any other Transaction Document or (ii) the breach of any
covenant or agreement made by Ciba or the Sellers in this Agreement or any
other Transaction Document and (II) one-third of all Losses in respect of
which an Investor Indemnified Person would be entitled to indemnification
under the Hexcel Agreement pursuant to Section 7.2(a)(i) thereof after
giving effect to the limitations on such indemnification contained in the
Hexcel Agreement other than the limitation set forth in Section 7.2(c)
thereof that limits the Company's liability thereunder to one-third of all
Losses incurred by the Investor Indemnified Person; provided, that, the
maximum amount recoverable under this Section 7.2(a)(II) shall be
$10,000,000.
(b) Each Purchaser, severally and not jointly, shall indemnify,
defend and hold harmless Ciba and the Sellers, their Affiliates, and their
respective officers, directors, partners, members, employees, agents,
representatives, successors and assigns (each a "Sellers Indemnified
Person") from and against all Losses incurred or suffered by a Sellers
Indemnified Person arising from (i) the breach of any of the
representations or warranties made by such Purchaser in this Agreement or
any other Transaction Document or (ii) the breach of any covenant or
agreement made by such Purchaser in this Agreement or any other Transaction
Document.
7.3. Procedure for Indemnification. (a) If a Purchaser
Indemnified Party or a Sellers Indemnified Person (such Person being
referred to as the "Indemnitee") shall receive notice or otherwise learn of
the assertion by a Person who is not a party to this Agreement of any claim
or of the commencement by any such Person of any action (a "Claim") with
respect to which the other party (the "Indemnifying Party") may be
obligated to provide indemnification, such Indemnitee shall give such
Indemnifying Party written notice thereof promptly after becoming aware of
such Claim; provided, that the failure of any Indemnitee to give notice as
provided in this Section 7.3 shall not relieve the applicable Indemnifying
Party of its obligations under this Article VII, except to the extent that
such Indemnifying Party is prejudiced by such failure to give notice;
provided, further, that the applicable Indemnifying Party shall have no
obligations under this Article VII unless such written notice is received
by the Indemnifying Party within the survival periods set forth in Section
7.1. Such notice shall describe the Claim in reasonable detail, and shall
indicate the amount (estimated if necessary) of the Loss that has been or
may be sustained by or is claimed against such Indemnitee. Such notice
shall be a condition precedent to any liability of any Indemnifying Party
for any Claim under the provisions for indemnification contained in this
Agreement.
(b) An Indemnifying Party may elect to compromise, settle or
defend, at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel, any Claim; provided, however, that the Indemnifying
Party shall not compromise, settle or defend a Claim without the consent of
the Indemnitee (which consent shall not be unreasonably withheld). If an
Indemnifying Party elects to compromise, settle or defend a Claim, it
shall, within 30 days of the receipt of notice from an Indemnitee pursuant
to Section 7.3(a) (or sooner, if the nature of such Claim so requires),
notify the applicable Indemnitee of its intent to do so, and such
Indemnitee shall cooperate in the compromise or settlement of, or defense
against, such Claim. After notice from an Indemnifying Party to an
Indemnitee of its election to assume the defense of a Claim, such
Indemnifying Party shall not be liable to such Indemnitee under this
Article VII for any legal or other expenses subsequently incurred by such
Indemnitee in connection with the defense thereof (except expenses approved
in advance by the Indemnitee); provided, that such Indemnitee shall have
the right to employ one separate counsel reasonably satisfactory to the
Indemnifying Party to represent such Indemnitee if the defendants in any
such claim included both the Indemnifying Party and the Indemnitee and, in
such Indemnitee's reasonable judgment, a conflict of interest between such
Indemnitee and such Indemnifying Party exists in respect of such claim, and
in that event the reasonable fees and expenses of such separate counsel
shall be paid by such Indemnifying Party. If an Indemnifying Party elects
not to compromise, settle or defend against a Claim, or fails to notify an
Indemnitee of its election as provided in this Section 7.3 within 30 days
of notice from the Indemnitee pursuant to Section 7.3(a), such Indemnitee
may compromise, settle or defend such Claim.
(c) If an Indemnifying Party chooses to defend any claim, the
applicable Indemnitee shall make available to such Indemnifying Party any
personnel or any books, records or other documents within its control that
are necessary or appropriate for such defense.
(d) If the amount of any Loss shall, at any time subsequent to
payment pursuant to this Agreement, be reduced by recovery, settlement or
otherwise, the amount of such reduction, less any expenses incurred in
connection therewith, shall promptly be repaid by the applicable Indemnitee
to the applicable Indemnifying Party.
(e) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Claim, such Indemnifying Party shall be
subrogated to and shall stand in the place of such Indemnitee as to any
events or circumstances in respect of which such Indemnitee may have any
right or claim relating to such Claim. Such Indemnitee shall cooperate with
such Indemnifying Party in a reasonable manner, and, at the cost and
expense of such Indemnifying Party, in prosecuting any subrogated right or
claim.
ARTICLE VIII
MISCELLANEOUS
8.1. Defined Terms; Interpretations. The following terms, as used
herein, shall have the following meanings:
"Acquisition Proposal" shall have the meaning ascribed to such
term in the Hexcel Agreement.
"Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Exchange Act.
"Aggregate Consideration Per Share" shall have the meaning
ascribed thereto in Section 8.2(b)(i).
"Agreement" shall have the meaning ascribed thereto in the
preamble.
"Alternative Transaction" shall have the meaning ascribed thereto
in Section 8.2(b)(ii).
"Beneficially Owning" shall have the meaning ascribed thereto in
the Governance Agreement.
"Ciba" shall have the meaning ascribed thereto in the recitals.
"Claim" shall have the meaning ascribed thereto in Section 7.3.
"Closing" shall have the meaning ascribed thereto in Section
1.2(a).
"Closing Date" shall have the meaning ascribed thereto in Section
1.2(a).
"Common Stock" shall have the meaning ascribed thereto in the
recitals.
"Company" shall have the meaning ascribed thereto in the
recitals.
"Consent and Termination Agreement" shall have the meaning
ascribed thereto in Section 5.2(j).
"Consents" shall have the meaning ascribed thereto in Section
4.3.
"Credit Agreement" shall mean the Second Amended and Restated
Credit Agreement, dated as of September 15, 1998, among the Company,
certain of its subsidiaries, the Lenders parties thereto, Citibank N.A. and
Credit Suisse First Boston.
"DGCL" shall mean the Delaware General Corporation Law.
"Drop Dead Date" shall have the meaning ascribed thereto in
Section 6.1(a)(ii).
"Encumbrances" shall have the meaning ascribed thereto in Section
2.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of
the SEC thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Exchange Act of 1934,
as amended, shall include reference to the comparable section, if any, of
any such successor federal statute.
"Fair Market Value" shall have the meaning ascribed thereto in
Section 8.2(b)(iii).
"Governance Agreement" shall have the meaning ascribed thereto in
Section 5.2(d).
"Governmental Entity" shall mean any supernational, national,
foreign, federal, state or local judicial, legislative, executive,
administrative or regulatory body or authority.
"Hexcel Agreement" shall mean the agreement, dated as of the date
hereof, among each of the Purchasers and the Company, attached as Exhibit J
hereto.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended, and the rules and regulations thereunder.
"Indemnifying Party" shall have the meaning ascribed thereto in
Section 7.3.
"Indemnitee" shall have the meaning ascribed thereto in Section
7.3.
"Indenture" shall have the meaning ascribed thereto in the
Consent and Termination Agreement.
"Independent Directors" shall have the meaning ascribed thereto
in the Hexcel Agreement.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations thereunder.
"Investor Indemnified Person" shall have the meaning ascribed
thereto in Section 7.2(a) of the Hexcel Agreement.
"Laws" shall include all foreign, federal, state, and local laws,
statutes, ordinances, rules, regulations, orders, judgments, decrees and
bodies of law.
"Litigation" shall have the meaning ascribed thereto in Section
8.13.
"Losses" shall mean each and all of the following items: claims,
losses, liabilities, obligations, payments, damages, charges, judgments,
fines, penalties, amounts paid in settlement, costs and expenses
(including, without limitation, interest which may be imposed in connection
therewith, costs and expenses of investigation, actions, suits,
proceedings, demands, assessments and fees, expenses and disbursements of
counsel, consultants and other experts).
"Material Adverse Effect" shall mean a material adverse effect on
the properties, business, operations, results of operations, earnings,
assets, liabilities or condition (financial or otherwise) of the Company
and its subsidiaries taken as a whole; provided, however, that changes
relating to United States or foreign economies in general or the Company's
and its subsidiaries' industries in general and not specifically relating
to the Company or its subsidiaries shall not constitute a Material Adverse
Effect for purposes of this Agreement.
"Notes" shall have the meaning ascribed thereto in Section 1.1.
"Person" shall mean any individual, firm, corporation, limited
liability company, partnership, company or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Pledge Agreement" shall have the meaning ascribed thereto in
Section 5.2(e).
"Purchase Price" shall have the meaning ascribed thereto in
Section 1.1.
"Purchasers" shall have the meaning ascribed thereto in the
preamble.
"Purchaser Indemnified Person" shall have the meaning ascribed
thereto in Section 7.2(a).
"Registration Rights Agreement" shall have the meaning ascribed
thereto in Section 5.2(d).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and regulations of
the SEC thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Act shall include
reference to the comparable section, if any, of such successor federal
statute.
"Sellers" shall have the meaning ascribed thereto in the
preamble.
"Sellers Indemnified Person" shall have the meaning ascribed
thereto in Section 7.2(b).
"Shares" shall have the meaning ascribed thereto in the recitals.
"Step-Down Date" shall have the meaning ascribed thereto in
Section 8.2(a).
"Termination Date" shall have the meaning ascribed thereto in
Section 6.1(b).
"Third Party Purchaser" shall have the meaning ascribed thereto
in Section 8.2(b)(iv).
"Transaction Documents" shall mean this Agreement, the Notes, the
Pledge Agreement and all other contracts, agreements, schedules,
certificates and other documents being delivered pursuant to or in
connection with this Agreement or such other documents or the transactions
contemplated hereby or thereby.
8.2. Fees and Expenses. (a) Except as provided in this Section
8.2, all costs and expenses incurred in connection with this Agreement
shall be paid by the party incurring such costs or expense. At the Closing,
Ciba and the Sellers shall reimburse the Purchasers for their reasonable
costs and expenses (including the fees and expenses of its counsel)
incurred in connection with this Agreement and the transactions
contemplated hereby, in an amount not to exceed $500,000. In addition, if
the transactions contemplated by this Agreement are not consummated by
reason of the failure of Ciba or any Seller to perform its obligations
hereunder, then (i) on the Termination Date, Ciba and the Sellers shall pay
to the Purchasers an amount in cash equal to the Purchasers' reasonable
costs and expenses (including the fees and expenses of its counsel)
incurred in connection with this Agreement and the transactions
contemplated hereby in an amount not to exceed $1,000,000 in the aggregate
and (ii) (A) if any Alternative Transaction is consummated on or prior to
March 1, 2001 (the "Step-Down Date") or thereafter pursuant to a definitive
agreement executed on or prior to the Step-Down Date, Ciba and the Sellers
shall pay the Purchasers an amount in cash equal to the product of (x) the
number of Shares sold, transferred or otherwise disposed of in such
Alternative Transaction, multiplied by (y) 25% of the Aggregate
Consideration Per Share in excess of $11.00, or (B) if any Alternative
Transaction is consummated after the Step-Down Date and on or prior to June
1, 2001 (in a transaction to which clause (A) does not apply), or
thereafter pursuant to a definitive agreement executed after the Step-Down
Date and on or prior to June 1, 2001, Ciba and the Sellers shall pay the
Purchasers an amount in cash equal to the product of (x) the number of
shares sold, transferred or otherwise disposed of in such Alternative
Transaction, multiplied by (y) 10% of the Aggregate Consideration Per Share
in excess of $11.00. Any amounts payable by Ciba and the Sellers to the
Purchasers pursuant to clause (ii) above shall be paid to the Purchasers no
later than the first business day after the closing of each Alternative
Transaction to which such clause (ii) applies; provided, however, that in
no event shall any amounts be paid pursuant to clause (ii) above if any
Alternative Transaction to which clause (ii) applies does not close.
(b) Notwithstanding anything to the contrary contained herein, if
(i) the Hexcel Agreement is terminated by the Company by a vote of the
Independent Directors pursuant to Section 6.1 thereof upon execution of a
definitive agreement with respect to an Acquisition Proposal, and (ii) the
transactions contemplated by such Acquisition Proposal are consummated on
or prior to the date that is 21 business days following the first
anniversary of the date hereof without the Closing hereunder having
occurred, then Ciba and the Sellers shall pay the Purchasers no later than
the first business day after the closing of such transactions, an amount in
cash equal to the product of (i) the lesser of (A) the number of Shares
sold, transferred or otherwise disposed of in such Acquisition Proposal and
(B) the number of Shares being purchased by the Purchasers hereunder,
multiplied by (ii) 100% of the Aggregate Consideration Per Share in excess
of $11.00.
(c) For purposes of this Section 8.2:
(i) "Aggregate Consideration Per Share" shall mean the amount per
Share payable to any Seller and/or any of its Affiliates pursuant to
any Alternative Transaction or Acquisition Proposal. The amount per
Share payable with respect to any Alternative Transaction or
Acquisition Proposal shall be determined by dividing (A) the sum of
(x) all cash amounts payable to any Seller and/or any of its
Affiliates and (y) the Fair Market Value of all securities, property
or other consideration payable to any Seller and/or any of its
Affiliates, in each case pursuant to such Alternative Transaction or
Acquisition Proposal by (B) the number of Shares sold, transferred or
otherwise disposed of pursuant to such Alternative Transaction or
Acquisition Proposal.
(ii) "Alternative Transaction" shall mean any sale, transfer or
other disposition of all or any portion of the Shares by any Seller
and/or any of its Affiliates to a Third Party Purchaser.
(iii) "Fair Market Value" shall mean (a) with respect to
securities (i) listed for trading on a national securities exchange or
admitted for trading on a national market system, either (x) the
closing price quoted on the principal securities exchange on which
such securities are listed for trading or (y) if not so listed, the
average of the closing bid and asked prices for such securities quoted
on the national market system on which such securities are admitted
for trading, each as published in the Eastern Edition of The Wall
Street Journal, in each case for the ten (10) trading days prior to
the date such securities are delivered to Ciba or the Sellers or (ii)
not listed for trading on a national securities exchange or admitted
for trading on a national market system, the fair market value of such
securities as determined in good faith from time to time according to
the mutual agreement of the Purchasers, Ciba and the Sellers;
provided, however, in the event that Ciba, the Purchasers and the
Sellers are unable to reach an agreement as to the fair market value
of such securities, the fair market value of such securities will be
determined by a neutral third party mutually agreed upon by the
Purchasers, Ciba and the Sellers, with such determination by the
neutral third party being binding on the Purchasers, Ciba and the
Sellers and not subject to any recourse or appeal or (b) with respect
to any other property, the fair market value of such property as
determined in good faith from time to time according to the mutual
agreement of the Purchasers, Ciba and the Sellers; provided, however,
in the event that the Purchasers, Ciba and the Sellers are unable to
reach an agreement as to the fair market value of such property, the
fair market value of such property will be determined by a neutral
third party mutually agreed upon by the Purchasers, Ciba and the
Sellers, with such determination by the neutral third party being
binding on the Purchasers, Ciba and the Sellers and not subject to any
recourse or appeal.
(iv) "Third Party Purchaser" shall mean any Person other than
Ciba, any Seller or any Affiliates of Ciba or any Seller.
8.3. Public Announcements. The Purchasers, Ciba and the Sellers
shall consult with each other before issuing any press release with respect
to this Agreement or the transactions contemplated hereby and neither shall
issue any such press release, make any such public statement or make any
filings required by Law without the prior consent of the other, which
consent shall not be unreasonably withheld or delayed; provided, however,
that a party may, without the prior consent of the other party, issue such
press release, make such public statement or make such required filing as
may upon the advice of counsel be required by Law or any exchange on which
Ciba or the Sellers' securities are listed and, to the extent time permits,
it has used all reasonable efforts to consult with the other party prior
thereto.
8.4. Further Assurances. At any time or from time to time after
the Closing, Ciba and the Sellers, on the one hand, and the Purchasers, on
the other hand, agree to cooperate with each other, and at the request of
the other party, to execute and deliver any further instruments or
documents and to take all such further action as the other party may
reasonably request in order to evidence or effectuate the consummation of
the transactions contemplated hereby or by the other Transaction Documents
and to otherwise carry out the intent of the parties hereunder or
thereunder.
8.5. Successors and Assigns. This Agreement shall bind and inure
to the benefit of Ciba, the Sellers and the Purchasers and the respective
successors, permitted assigns, heirs and personal representatives of Ciba,
the Sellers and the Purchasers, provided that prior to the Closing none of
Ciba or the Sellers may assign its rights or obligations under this
Agreement to any Person without the prior written consent of the
Purchasers, and provided further that the Purchasers may not assign their
rights or obligations under this Agreement to any Person (other than an
Affiliate of such Purchaser) without the prior written consent of Ciba and
the Sellers. In addition, and whether or not any express assignment has
been made, the provisions of this Agreement which are for the Purchasers'
benefit as Purchasers or holders of the Shares are also for the benefit of,
and enforceable by, any Affiliates of the Purchasers who hold such Shares
and received such Shares in accordance with the terms of this Agreement.
8.6. Entire Agreement. This Agreement and the other Transaction
Documents contain the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto, including, without
limitation, the Letter Agreement, dated September 1, 2000, between GS
Capital Partners 2000, L.P. and Ciba Specialty Chemicals Holding Inc. and
Ciba Specialty Chemicals Corporation, as amended prior to the date hereof.
8.7. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to
such party at the address set forth below or such other address as may
hereafter be designated in writing by such party to the other parties:
(i) if to Ciba and the Sellers, to each of the following addresses:
Ciba Specialty Chemicals Holding Inc.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇ - ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Ciba Specialty Chemicals Inc.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇ - ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Ciba Specialty Chemicals Corporation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
with a copy to (which shall not constitute notice):
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(ii) if to the Purchasers, to:
c/o Goldman ▇▇▇▇▇ Capital Partners 2000, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
All such notices, requests, consents and other communications
shall be deemed to have been given or made if and when delivered personally
or by overnight courier to the parties at the above addresses or sent by
electronic transmission, with confirmation received, to the telecopy
numbers specified above (or at such other address or telecopy number for a
party as shall be specified by like notice).
8.8. Amendments. The terms and provisions of this Agreement may
be modified or amended, or any of the provisions hereof waived, temporarily
or permanently, in a writing executed and delivered by Ciba, the Sellers
and the Purchasers. No waiver of any of the provisions of this Agreement
shall be deemed to or shall constitute a waiver of any other provision
hereof (whether or not similar). No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a
waiver thereof.
8.9. Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute
but one agreement.
8.10. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
8.11. Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.
8.12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
8.13. Submission to Jurisdiction. Each of the parties hereto
hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United
States of America, in each case located in the County of New York, for any
claim, action, suit, investigation or proceeding ("Litigation") arising out
of or relating to this Agreement or the other Transaction Documents and the
transactions contemplated hereby and thereby (and agrees not to commence
any Litigation relating hereto or thereto except in such courts), and
further agrees that service of any process, summons, notice or document by
U.S. registered mail to its respective address set forth in this Agreement
shall be effective service of process for any Litigation brought against it
in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any
Litigation arising out of this Agreement or the transactions contemplated
hereby in the courts of the State of New York or the United States of
America, in each case located in the County of New York, hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any such court that any such Litigation brought in any such court has been
brought in an inconvenient forum.
8.14. WAIVER OF JURY TRIAL. CIBA, THE SELLERS AND THE PURCHASERS
HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTION DOCUMENTS.
8.15. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid,
but if any provision of this Agreement is held to be invalid or
unenforceable in any respect, such invalidity or unenforceability shall not
render invalid or unenforceable any other provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first above written.
LXH, L.L.C.
By: GS Capital Partners 2000, L.P.,
its managing member
By: GS Advisors 2000, L.L.C.,
its general partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
LXH II, L.L.C.
By: GS Capital Partners 2000, L.P.,
its managing member
By: GS Advisors 2000, L.L.C.,
its general partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CIBA SPECIALTY CHEMICALS HOLDING INC.
By:/s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Counsel
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Tax and Corporate Counsel
CIBA SPECIALTY CHEMICALS INC.
By:/s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Counsel
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Tax and Corporate Counsel
CIBA SPECIALTY CHEMICALS CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
SCHEDULE 1.1
SHARE AND PURCHASE PRICE ALLOCATION
PURCHASER SHARES PURCHASED CASH PROMISSORY NOTES
--------- ---------------- ---- ----------------
LXH, L.L.C. 8,272,312 $70,314,652 $20,680,780
LXH II, L.L.C. 6,252,688 $53,147,848 $15,631,720