UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
Hexcel Corporation
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(Name of Issuer)
Common Stock (Par Value $0.01 Per Share)
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(Title of Class of Securities)
428290 10 0
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(CUSIP Number)
Robert C. Schwenkel, Esq. Ben I. Adler, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP Goldman, Sachs & Co.
One New York Plaza One New York Plaza
New York, NY 10004 New York, NY 10004
(212) 859-8000 (212) 902-1000
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(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications)
November 24, 2004
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box |_|.
Note. Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Rule 13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover
page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 2 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
THE GOLDMAN SACHS GROUP, INC.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7 SOLE VOTING POWER
NUMBER OF
38,668
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 33,306,262
9 SOLE DISPOSITIVE POWER
EACH
38,668
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 33,306,262
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
33,344,930*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.3%**
14 TYPE OF REPORTING PERSON
HC-CO
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by The Goldman Sachs Group, Inc. ("GS Group")
which are issuable upon (i) the conversion of shares of Series A Convertible
Preferred Stock of the Company and Series B Convertible Preferred Stock of
the Company at a conversion price of $3.00 per share and (ii) the exercise of
options granted by the Company which are currently exercisable and held for
the benefit of GS Group.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than GS Group. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than GS Group. This percentage would
equal 36.9% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 3 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF, WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |X|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 33,306,262
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 33,306,262
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
33,306,262*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.3%**
14 TYPE OF REPORTING PERSON
BD-PN-IA
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by Goldman, Sachs & Co. ("Goldman Sachs") which
are issuable upon the conversion of shares of Series A Convertible Preferred
Stock of the Company and Series B Convertible Preferred Stock of the Company
at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than Goldman Sachs. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than Goldman Sachs. This percentage
would equal 36.9% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 4 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Advisors 2000, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 25,861,072
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 25,861,072
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25,861,072*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
47.1%**
14 TYPE OF REPORTING PERSON
OO
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by GS Advisors 2000, L.L.C. ("GS Advisors")
which are issuable upon the conversion of shares of Series A Convertible
Preferred Stock of the Company and Series B Convertible Preferred Stock of
the Company at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than GS Advisors. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than GS Advisors. This percentage
would equal 28.7% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 5 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co. oHG
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 792,845
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 792,845
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
792,845*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.9%**
14 TYPE OF REPORTING PERSON
PN
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by Goldman, Sachs & Co. oHG ("GS oHG") which
are issuable upon the conversion of shares of Series A Convertible Preferred
Stock of the Company and Series B Convertible Preferred Stock of the Company
at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than GS oHG. Accordingly, such calculation does not include
the shares of common stock of the Company issuable upon the conversion of
shares of Series A Convertible Preferred Stock of the Company and Series B
Convertible Preferred Stock of the Company which are beneficially owned by
any person other than GS oHG. This percentage would equal 0.9% if it were
calculated by including such securities in such calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 6 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs Management GP GmbH
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 792,845
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 792,845
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
792,845*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.9%**
14 TYPE OF REPORTING PERSON
CO
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by Goldman, Sachs Management GP GmbH ("GS
GmbH") which are issuable upon the conversion of shares of Series A
Convertible Preferred Stock of the Company and Series B Convertible Preferred
Stock of the Company at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than GS GmbH. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than GS GmbH. This percentage would
equal 0.9% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 7 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Employee Funds 2000 GP, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,026,877
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 6,026,877
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,026,877*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.8%**
14 TYPE OF REPORTING PERSON
OO
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by GS Employee Funds 2000 GP, L.L.C. ("GS
Employee 2000") which are issuable upon the conversion of shares of Series A
Convertible Preferred Stock of the Company and Series B Convertible Preferred
Stock of the Company at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than GS Employee 2000. Accordingly, such calculation does
not include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than GS Employee 2000. This
percentage would equal 6.7% if it were calculated by including such
securities in such calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 8 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stone Street 2000, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 625,368
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 625,368
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
625,368*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.5%**
14 TYPE OF REPORTING PERSON
OO
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by Stone Street 2000, L.L.C. ("Stone 2000")
which are issuable upon the conversion of shares of Series A Convertible
Preferred Stock of the Company and Series B Convertible Preferred Stock of
the Company at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than Stone 2000. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than Stone 2000. This percentage
would equal 0.7% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 9 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 18,968,604
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 18,968,604
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
18,968,604*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
37.1%**
14 TYPE OF REPORTING PERSON
PN
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by GS Capital Partners 2000, L.P. ("GS
Capital") which are issuable upon the conversion of shares of Series A
Convertible Preferred Stock of the Company and Series B Convertible Preferred
Stock of the Company at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than GS Capital. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than GS Capital. This percentage
would equal 21.0% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 10 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000 Offshore, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,892,468
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 6,892,468
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,892,468*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.6%**
14 TYPE OF REPORTING PERSON
PN
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by GS Capital Partners 2000 Offshore, L.P. ("GS
Offshore") which are issuable upon the conversion of shares of Series A
Convertible Preferred Stock of the Company and Series B Convertible Preferred
Stock of the Company at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than GS Offshore. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than GS Offshore. This percentage
would equal 7.6% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 11 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 792,845
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 792,845
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
792,845*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.9%**
14 TYPE OF REPORTING PERSON
PN
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by GS Capital Partners 2000 GmbH & Co.
Beteiligungs KG ("GS Germany") which are issuable upon the conversion of
shares of Series A Convertible Preferred Stock of the Company and Series B
Convertible Preferred Stock of the Company at a conversion price of $3.00 per
share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than GS Germany. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than GS Germany. This percentage
would equal 0.9% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 12 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000 Employee Fund, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,026,877
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 6,026,877
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,026,877*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.8%**
14 TYPE OF REPORTING PERSON
PN
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by GS Capital Partners 2000 Employee Fund, L.P.
("GS Employee") which are issuable upon the conversion of shares of Series A
Convertible Preferred Stock of the Company and Series B Convertible Preferred
Stock of the Company at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than GS Employee. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than GS Employee. This percentage
would equal 6.7% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 13 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stone Street Fund 2000, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 625,368
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 625,368
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
625,368*
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.5%**
14 TYPE OF REPORTING PERSON
PN
* This amount includes shares of common stock of Hexcel Corporation (the
"Company") beneficially owned by Stone Street Fund 2000, L.P. ("Stone
Street") which are issuable upon the conversion of shares of Series A
Convertible Preferred Stock of the Company and Series B Convertible Preferred
Stock of the Company at a conversion price of $3.00 per share.
** This percentage is calculated in accordance with Rule 13d-3(d)(1) of the
Securities Exchange Act of 1934, as amended, which specifically excludes from
such calculation all securities not outstanding which are subject to options,
warrants, rights or conversion privileges and which are beneficially owned by
any person other than Stone Street. Accordingly, such calculation does not
include the shares of common stock of the Company issuable upon the
conversion of shares of Series A Convertible Preferred Stock of the Company
and Series B Convertible Preferred Stock of the Company which are
beneficially owned by any person other than Stone Street. This percentage
would equal 0.7% if it were calculated by including such securities in such
calculation.
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 14 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LXH Holdings Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 221,325.7
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 221,325.7
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
221,325.7
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 15 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LXH Holdings, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 257,299.2
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 257,299.2
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
257,299.2
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 16 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LXH, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF, WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 8,272,312
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 8,272,312
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,272,312
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.5%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 428290 10 0 Page 17 of 46
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
LXH II, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF, WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,252,688
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 6,252,688
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,252,688
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.5%
14 TYPE OF REPORTING PERSON
OO
This Amendment No. 3, filed by The Goldman Sachs Group, Inc. ("GS
Group"), Goldman, Sachs & Co. ("Goldman Sachs"), GS Advisors 2000, L.L.C.
("GS Advisors"), Goldman, Sachs & Co. oHG ("GS oHG"), Goldman, Sachs
Management GP GmbH ("GS GmbH"), GS Employee Funds 2000 GP, L.L.C. ("GS
Employee 2000"), Stone Street 2000, L.L.C. ("Stone 2000"), GS Capital
Partners 2000, L.P. ("GS Capital"), GS Capital Partners 2000 Offshore, L.P.
("GS Offshore"), GS Capital Partners 2000 GmbH & Co. Beteiligungs KG ("GS
Germany"), GS Capital Partners 2000 Employee Fund, L.P. ("GS Employee"),
Stone Street Fund 2000, L.P. ("Stone Street" and, together with GS Capital,
GS Offshore, GS Germany and GS Employee, the "Limited Partnerships"), LXH
Holdings Corp. ("LXH Corp."), LXH Holdings, L.P. ("LXH L.P."), LXH, L.L.C.
("LXH"), and LXH II, L.L.C. ("LXH II" and, together with LXH, the "Original
Purchasers") (GS Group, Goldman Sachs, GS Advisors, GS oHG, GS GmbH, GS
Employee 2000, Stone 2000, the Limited Partnerships, LXH Corp., LXH L.P.,
and the Original Purchasers, collectively, the "Filing Persons"), amends
and supplements the Schedule 13D filed by the Filing Persons with the
Securities and Exchange Commission (the "SEC") on December 28, 2000 (as
amended by Amendment No. 1 filed on December 20, 2002 and Amendment No. 2
filed on March 21, 2003, the "Schedule 13D"), relating to the common stock,
par value $0.01 per share (the "Common Stock"), of Hexcel Corporation, a
Delaware corporation (the "Company"). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in
the Schedule 13D.(1)
ITEM 4. PURPOSE OF TRANSACTION.
----------------------
Item 4 is hereby amended by adding the following immediately
before the final three paragraphs thereof:
On November 24, 2004, LXH and LXH II provided the Company with
written notice, pursuant to Section 2.1(a)(i) of the Amended and Restated
Registration Rights Agreement, of the exercise of one of their three demand
registration rights and requested that the Company file a registration
statement on Form S-3 with respect to an aggregate of 11,100,086 shares of
Common Stock beneficially owned by LXH and LXH II. The intended method of
distribution of such shares of Common Stock is an underwritten public
offering (the "Registered Offering"). Goldman Sachs will act as an
underwriter in the Registered Offering. Even though LXH and LXH II (i)
have exercised one of their demand registration rights to cause the Company
to register the sale of 11,100,086 shares of Common Stock beneficially
owned by LXH and LXH II and (ii) presently intend to dispose of all such
shares in the Registered Offering, depending on market conditions and other
factors in existence at the time of any such disposition, there can be no
assurance that a registration statement with respect to the sale of such
shares will be declared effective by the SEC or that such shares will
ultimately be sold pursuant to such registration statement.
--------
1 Neither the present filing nor anything contained herein will be
construed as an admission that any Filing Person constitutes a
"person" for any purpose other than for compliance with Section 13(d)
of the Securities Exchange Act of 1934.
On November 24, 2004, the Company advised LXH and LXH II that the
Other Purchasers were exercising their piggyback registration rights
pursuant to Section 2.2 of the registration rights agreement, dated as of
March 19, 2003, among the Company and the Other Purchasers, and, in
connection therewith, will convert 14,466 shares of Series A Preferred
Stock and 77,875 shares of Series B Preferred Stock beneficially owned by
them into an aggregate of 9,899,914 shares of Common Stock.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
-------------------------------------
Item 5 is hereby amended and restated in its entirety as follows:
(a) As of November 24, 2004, GS Group may be deemed to
beneficially own an aggregate of 33,344,930 shares of Common Stock,
consisting of: (i) 14,525,000 shares of Common Stock that are beneficially
owned by the Original Purchasers, as described below; (ii) (A) (I) 10,000
options granted to Mr. Mehra on December 19, 2000 pursuant to the Hexcel
Incentive Stock Plan, of which all of such options are currently
exercisable for 10,000 shares of Common Stock, (II) 2,000 options granted
to Mr. Mehra on May 10, 2001 pursuant to the Hexcel Incentive Stock Plan,
of which all of such options are currently exercisable for 2,000 shares of
Common Stock, (III) 8,000 options granted to Mr. Mehra on July 31, 2001
pursuant to the Hexcel Incentive Stock Plan, of which all of such options
are currently exercisable for 8,000 shares of Common Stock, (IV) 2,000
options granted to Mr. Mehra on May 9, 2002 pursuant to the Hexcel
Incentive Stock Plan, of which all of such options are currently
exercisable for 2,000 shares of Common Stock, (V) 2,000 options granted to
Mr. Mehra on May 22, 2003 pursuant to the Hexcel Incentive Stock Plan, of
which two-thirds of such options are currently exercisable for 1,334 shares
of Common Stock and the remaining one-third of such options will vest and
become exercisable on May 22, 2005, and (VI) 1,590 restricted stock units
granted to Mr. Mehra on November 16, 2004 pursuant to the Hexcel Incentive
Stock Plan, of which one-third of such restricted stock units vested on the
date of grant, an additional one-third of such restricted stock units will
vest on November 16, 2005, the remaining one-third of such restricted stock
units will vest on November 16, 2006 and all of such restricted stock units
will convert into an equal number of shares of Common Stock on November 16,
2006 (Sanjeev K. Mehra has an understanding with GS Group pursuant to which
he holds the options and restricted stock units described above in (A)(I)
through (A)(VI) for the benefit of GS Group), and (B) (I) 10,000 options
granted to Mr. Sacerdote on December 19, 2000 pursuant to the Hexcel
Incentive Stock Plan, of which all of such options are currently
exercisable for 10,000 shares of Common Stock, (II) 2,000 options granted
to Mr. Sacerdote on May 10, 2001 pursuant to the Hexcel Incentive Stock
Plan, of which all of such options are currently exercisable for 2,000
shares of Common Stock, (III) 2,000 options granted to Mr. Sacerdote on May
9, 2002 pursuant to the Hexcel Incentive Stock Plan, of which all of such
options are currently exercisable for 2,000 shares of Common Stock, (IV)
2,000 options granted to Mr. Sacerdote on May 22, 2003 pursuant to the
Hexcel Incentive Stock Plan, of which two-thirds of such options are
currently exercisable for 1,334 shares of Common Stock and the remaining
one-third of such options will vest and become exercisable on May 22, 2005,
and (V) 1,590 restricted stock units granted to Mr. Sacerdote on November
16, 2004 pursuant to the Hexcel Incentive Stock Plan, of which one-third of
such restricted stock units vested on the date of grant, an additional
one-third of such restricted stock units will vest on November 16, 2005,
the remaining one-third of such restricted stock units will vest on
November 16, 2006 and all of such restricted stock units will convert into
an equal number of shares of Common Stock on November 16, 2006 (Peter M.
Sacerdote has an understanding with GS Group pursuant to which he holds the
options and restricted stock units described above in (B)(I) through (B)(V)
for the benefit of GS Group); (iii) 47,125 shares of Series A Preferred
Stock that are beneficially owned by the Limited Partnerships, as described
below, and that are convertible into 15,708,332 shares of Common Stock;
(iv) 47,125 shares of Series B Preferred Stock that are beneficially owned
by the Limited Partnerships, as described below, and that are convertible
into 3,072,830 shares of Common Stock; and (v) 100 shares of Common Stock
acquired by Goldman Sachs in ordinary course trading activities. The shares
of Common Stock that may be deemed to be beneficially owned by GS Group
represent approximately 56.3% of the outstanding shares of Common Stock,
based on there being 40,381,080 shares of Common Stock outstanding as of
November 22, 2004, as disclosed in the Company's registration statement on
Form S-3 filed on November 24, 2004 (the "November 2004 S-3"). The
foregoing percentage was calculated in accordance with Rule 13d-3(d)(1) of
the Exchange Act, which specifically excludes from such calculation all
securities not outstanding which are subject to options, warrants, rights
or conversion privileges and which are beneficially owned by any person
other than GS Group. Accordingly, such calculation does not include (i) the
shares of Common Stock issuable upon conversion of shares of Series A
Preferred Stock and Series B Preferred Stock and (ii) the shares of Common
Stock issuable upon exercise of currently exercisable options or options
that become exercisable within 60 days, in the case of each of (i) and
(ii), which are beneficially owned by any person other than GS Group. All
outstanding shares of Series A Preferred Stock and Series B Preferred Stock
are entitled to vote, on an as-converted basis, on all matters put to a
vote or consent of the holders of Common Stock. Therefore, in any such vote
or consent, as of November 24, 2004, GS Group will have the power to vote
shares representing approximately 36.9% of the total number of votes that
may be cast on any such matter.
As of November 24, 2004, Goldman Sachs may be deemed to
beneficially own an aggregate of 33,306,262 shares of Common Stock,
consisting of: (i) 14,525,000 shares of Common Stock that are beneficially
owned by the Original Purchasers, as described below; (ii) 47,125 shares of
Series A Preferred Stock that are beneficially owned by the Limited
Partnerships, as described below, and that are convertible into 15,708,332
shares of Common Stock; (iii) 47,125 shares of Series B Preferred Stock
that are beneficially owned by the Limited Partnerships, as described
below, and that are convertible into 3,072,830 shares of Common Stock; and
(iv) 100 shares of Common Stock acquired by Goldman Sachs in ordinary
course trading activities. The shares of Common Stock that may be deemed to
be beneficially owned by Goldman Sachs represent approximately 56.3% of the
outstanding shares of Common Stock, based on there being 40,381,080 shares
of Common Stock outstanding as of November 22, 2004, as disclosed in the
November 2004 S-3. The foregoing percentage was calculated in accordance
with Rule 13d-3(d)(1) of the Exchange Act, which specifically excludes from
such calculation all securities not outstanding which are subject to
options, warrants, rights or conversion privileges and which are
beneficially owned by any person other than Goldman Sachs. Accordingly,
such calculation does not include (i) the shares of Common Stock issuable
upon conversion of shares of Series A Preferred Stock and Series B
Preferred Stock and (ii) the shares of Common Stock issuable upon exercise
of currently exercisable options or options that become exercisable within
60 days, in the case of each of (i) and (ii), which are beneficially owned
by any person other than Goldman Sachs. All outstanding shares of Series A
Preferred Stock and Series B Preferred Stock are entitled to vote, on an
as-converted basis, on all matters put to a vote or consent of the holders
of Common Stock. Therefore, in any such vote or consent, as of November 24,
2004, Goldman Sachs will have the power to vote shares representing
approximately 36.9% of the total number of votes that may be cast on any
such matter.
GS Group and Goldman Sachs disclaim beneficial ownership of the
shares of Common Stock beneficially owned by the Original Purchasers and
the Limited Partnerships to the extent that partnership or membership
interests, as the case may be, in the Limited Partnerships are held by
persons other than Goldman Sachs or its affiliates.
In accordance with Securities and Exchange Commission Release
No. 34-39538 (January 12, 1998), this filing reflects the securities
beneficially owned by the investment banking division of GS Group and its
subsidiaries and affiliates (the "Investment Banking Division"). This
filing does not reflect securities, if any, beneficially owned by any other
operating unit of GS Group and its subsidiaries and affiliates. The
Investment Banking Division disclaims beneficial ownership of securities,
if any, beneficially owned by (i) any client accounts with respect to which
the Investment Banking Division or its employees have voting or investment
discretion, or both, and (ii) certain investment entities, of which the
Investment Banking Division is the general partner, managing general
partner or other manager, to the extent interests in such entities are held
by persons other than the Investment Banking Division.
As of November 24, 2004, GS Advisors may be deemed to
beneficially own an aggregate of 25,861,072 shares of Common Stock,
consisting of: (i) 11,278,155 shares of Common Stock, of which 8,272,312
shares may be deemed to be beneficially owned by GS Capital and 3,005,843
shares may be deemed to be beneficially owned by GS Offshore, as described
below; (ii) 36,590.916 shares of Series A Preferred Stock, of which
26,838.74 shares are beneficially owned by GS Capital and 9,752.176 shares
are beneficially owned by GS Offshore, as described below, and that are
convertible into 12,196,971 shares of Common Stock; and (iii) 36,590.916
shares of Series B Preferred Stock, of which 26,838.74 shares are
beneficially owned by GS Capital and 9,752.176 shares are beneficially
owned by GS Offshore, as described below, and that are convertible into
2,385,946 shares of Common Stock. The shares of Common Stock that may be
deemed to be beneficially owned by GS Advisors represent approximately
47.1% of the outstanding shares of Common Stock, based on there being
40,381,080 shares of Common Stock outstanding as of November 22, 2004, as
disclosed in the November 2004 S-3. The foregoing percentage was calculated
in accordance with Rule 13d-3(d)(1) of the Exchange Act, which specifically
excludes from such calculation all securities not outstanding which are
subject to options, warrants, rights or conversion privileges and which are
beneficially owned by any person other than GS Advisors. Accordingly, such
calculation does not include (i) the shares of Common Stock issuable upon
conversion of shares of Series A Preferred Stock and Series B Preferred
Stock and (ii) the shares of Common Stock issuable upon exercise of
currently exercisable options or options that become exercisable within 60
days, in the case of each of (i) and (ii), which are beneficially owned by
any person other than GS Advisors. All outstanding shares of Series A
Preferred Stock and Series B Preferred Stock are entitled to vote, on an
as-converted basis, on all matters put to a vote or consent of the holders
of Common Stock. Therefore, in any such vote or consent, as of November 24,
2004, GS Advisors will have the power to vote shares representing
approximately 28.7% of the total number of votes that may be cast on any
such matter.
As of November 24, 2004, GS oHG may be deemed to beneficially
own an aggregate of 792,845 shares of Common Stock, consisting of: (i)
345,764 shares of Common Stock that may be deemed to be beneficially owned
by GS Germany; (ii) 1,121.799 shares of Series A Preferred Stock that are
beneficially owned by GS Germany and that are convertible into 373,933
shares of Common Stock; and (iii) 1,121.799 shares of Series B Preferred
Stock that are beneficially owned by GS Germany and that are convertible
into 73,148 shares of Common Stock. The shares of Common Stock that may be
deemed to be beneficially owned by GS oHG represent approximately 1.9% of
the outstanding shares of Common Stock, based on there being 40,381,080
shares of Common Stock outstanding as of November 22, 2004, as disclosed in
the November 2004 S-3. The foregoing percentage was calculated in
accordance with Rule 13d-3(d)(1) of the Exchange Act, which specifically
excludes from such calculation all securities not outstanding which are
subject to options, warrants, rights or conversion privileges and which are
beneficially owned by any person other than GS oHG. Accordingly, such
calculation does not include (i) the shares of Common Stock issuable upon
conversion of shares of Series A Preferred Stock and Series B Preferred
Stock and (ii) the shares of Common Stock issuable upon exercise of
currently exercisable options or options that become exercisable within 60
days, in the case of each of (i) and (ii), which are beneficially owned by
any person other than GS oHG. All outstanding shares of Series A Preferred
Stock and Series B Preferred Stock are entitled to vote, on an as-converted
basis, on all matters put to a vote or consent of the holders of Common
Stock. Therefore, in any such vote or consent, as of November 24, 2004, GS
oHG will have the power to vote shares representing approximately 0.9% of
the total number of votes that may be cast on any such matter.
As of November 24, 2004, GS GmbH may be deemed to beneficially
own an aggregate of 792,845 shares of Common Stock, consisting of: (i)
345,764 shares of Common Stock that may be deemed to be beneficially owned
by GS Germany; (ii) 1,121.799 shares of Series A Preferred Stock that are
beneficially owned by GS Germany and that are convertible into 373,933
shares of Common Stock; and (iii) 1,121.799 shares of Series B Preferred
Stock that are beneficially owned by GS Germany and that are convertible
into 73,148 shares of Common Stock. The shares of Common Stock that may be
deemed to be beneficially owned by GS GmbH represent approximately 1.9% of
the outstanding shares of Common Stock, based on there being 40,381,080
shares of Common Stock outstanding as of November 22, 2004, as disclosed in
the November 2004 S-3. The foregoing percentage was calculated in
accordance with Rule 13d-3(d)(1) of the Exchange Act, which specifically
excludes from such calculation all securities not outstanding which are
subject to options, warrants, rights or conversion privileges and which are
beneficially owned by any person other than GS GmbH. Accordingly, such
calculation does not include (i) the shares of Common Stock issuable upon
conversion of shares of Series A Preferred Stock and Series B Preferred
Stock and (ii) the shares of Common Stock issuable upon exercise of
currently exercisable options or options that become exercisable within 60
days, in the case of each of (i) and (ii), which are beneficially owned by
any person other than GS GmbH. All outstanding shares of Series A Preferred
Stock and Series B Preferred Stock are entitled to vote, on an as-converted
basis, on all matters put to a vote or consent of the holders of Common
Stock. Therefore, in any such vote or consent, as of November 24, 2004, GS
GmbH will have the power to vote shares representing approximately 0.9% of
the total number of votes that may be cast on any such matter.
As of November 24, 2004, GS Employee 2000 may be deemed to
beneficially own an aggregate of 6,026,877 shares of Common Stock,
consisting of: (i) 2,628,354 shares of Common Stock that may be deemed to
be beneficially owned by GS Employee; (ii) 8,527.45 shares of Series A
Preferred Stock that are beneficially owned by GS Employee and that are
convertible into 2,842,483 shares of Common Stock; and (iii) 8,527.45
shares of Series B Preferred Stock that are beneficially owned by GS
Employee and that are convertible into 556,040 shares of Common Stock. The
shares of Common Stock that may be deemed to be beneficially owned by GS
Employee 2000 represent approximately 13.8% of the outstanding shares of
Common Stock, based on there being 40,381,080 shares of Common Stock
outstanding as of November 22, 2004, as disclosed in the November 2004 S-3.
The foregoing percentage was calculated in accordance with Rule 13d-3(d)(1)
of the Exchange Act, which specifically excludes from such calculation all
securities not outstanding which are subject to options, warrants, rights
or conversion privileges and which are beneficially owned by any person
other than GS Employee 2000. Accordingly, such calculation does not include
(i) the shares of Common Stock issuable upon conversion of shares of Series
A Preferred Stock and Series B Preferred Stock and (ii) the shares of
Common Stock issuable upon exercise of currently exercisable options or
options that become exercisable within 60 days, in the case of each of (i)
and (ii), which are beneficially owned by any person other than GS Employee
2000. All outstanding shares of Series A Preferred Stock and Series B
Preferred Stock are entitled to vote, on an as-converted basis, on all
matters put to a vote or consent of the holders of Common Stock. Therefore,
in any such vote or consent, as of November 24, 2004, GS Employee 2000 will
have the power to vote shares representing approximately 6.7% of the total
number of votes that may be cast on any such matter.
As of November 24, 2004, Stone 2000 may be deemed to
beneficially own an aggregate of 625,368 shares of Common Stock, consisting
of: (i) 272,727 shares of Common Stock that may be deemed to be
beneficially owned by Stone Street; (ii) 884.835 shares of Series A
Preferred Stock that are beneficially owned by Stone Street and that are
convertible into 294,945 shares of Common Stock; and (iii) 884.835 shares
of Series B Preferred Stock that are beneficially owned by Stone Street and
that are convertible into 57,696 shares of Common Stock. The shares of
Common Stock that may be deemed to be beneficially owned by Stone 2000
represent approximately 1.5% of the outstanding shares of Common Stock,
based on there being 40,381,080 shares of Common Stock outstanding as of
November 22, 2004, as disclosed in the November 2004 S-3. The foregoing
percentage was calculated in accordance with Rule 13d-3(d)(1) of the
Exchange Act, which specifically excludes from such calculation all
securities not outstanding which are subject to options, warrants, rights
or conversion privileges and which are beneficially owned by any person
other than Stone 2000. Accordingly, such calculation does not include (i)
the shares of Common Stock issuable upon conversion of shares of Series A
Preferred Stock and Series B Preferred Stock and (ii) the shares of Common
Stock issuable upon exercise of currently exercisable options or options
that become exercisable within 60 days, in the case of each of (i) and
(ii), which are beneficially owned by any person other than Stone 2000. All
outstanding shares of Series A Preferred Stock and Series B Preferred Stock
are entitled to vote, on an as-converted basis, on all matters put to a
vote or consent of the holders of Common Stock. Therefore, in any such vote
or consent, as of November 24, 2004, GS Stone 2000 will have the power to
vote shares representing approximately 0.7% of the total number of votes
that may be cast on any such matter.
As of November 24, 2004, GS Capital may be deemed to
beneficially own an aggregate of 18,968,604 shares of Common Stock,
consisting of: (i) 8,272,312 shares of Common Stock that are beneficially
owned by LXH; (ii) 26,838.74 shares of Series A Preferred Stock that are
beneficially owned by GS Capital and that are convertible into 8,946,246
shares of Common Stock; and (iii) 26,838.74 shares of Series B Preferred
Stock that are beneficially owned by GS Capital and that are convertible
into 1,750,046 shares of Common Stock. The shares of Common Stock that may
be deemed to be beneficially owned by GS Capital represent approximately
37.1% of the outstanding shares of Common Stock, based on there being
40,381,080 shares of Common Stock outstanding as of November 22, 2004, as
disclosed in the November 2004 S-3. The foregoing percentage was calculated
in accordance with Rule 13d-3(d)(1) of the Exchange Act, which specifically
excludes from such calculation all securities not outstanding which are
subject to options, warrants, rights or conversion privileges and which are
beneficially owned by any person other than GS Capital. Accordingly, such
calculation does not include (i) the shares of Common Stock issuable upon
conversion of shares of Series A Preferred Stock and Series B Preferred
Stock and (ii) the shares of Common Stock issuable upon exercise of
currently exercisable options or options that become exercisable within 60
days, in the case of each of (i) and (ii), which are beneficially owned by
any person other than GS Capital. All outstanding shares of Series A
Preferred Stock and Series B Preferred Stock are entitled to vote, on an
as-converted basis, on all matters put to a vote or consent of the holders
of Common Stock. Therefore, in any such vote or consent, as of November 24,
2004, GS Capital will have the power to vote shares representing
approximately 21.0% of the total number of votes that may be cast on any
such matter.
As of November 24, 2004, GS Offshore may be deemed to
beneficially own an aggregate of 6,892,468 shares of Common Stock,
consisting of: (i) 3,005,843 shares of Common Stock that are beneficially
owned by LXH II; (ii) 9,752.176 shares of Series A Preferred Stock that are
beneficially owned by GS Offshore and that are convertible into 3,250,725
shares of Common Stock; and (iii) 9,752.176 shares of Series B Preferred
Stock that are beneficially owned by GS Offshore and that are convertible
into 635,900 shares of Common Stock. The shares of Common Stock that may be
deemed to be beneficially owned by GS Offshore represent approximately
15.6% of the outstanding shares of Common Stock, based on there being
40,381,080 shares of Common Stock outstanding as of November 22, 2004, as
disclosed in the November 2004 S-3. The foregoing percentage was calculated
in accordance with Rule 13d-3(d)(1) of the Exchange Act, which specifically
excludes from such calculation all securities not outstanding which are
subject to options, warrants, rights or conversion privileges and which are
beneficially owned by any person other than GS Offshore. Accordingly, such
calculation does not include (i) the shares of Common Stock issuable upon
conversion of shares of Series A Preferred Stock and Series B Preferred
Stock and (ii) the shares of Common Stock issuable upon exercise of
currently exercisable options or options that become exercisable within 60
days, in the case of each of (i) and (ii), which are beneficially owned by
any person other than GS Offshore. All outstanding shares of Series A
Preferred Stock and Series B Preferred Stock are entitled to vote, on an
as-converted basis, on all matters put to a vote or consent of the holders
of Common Stock. Therefore, in any such vote or consent, as of November 24,
2004, GS Offshore will have the power to vote shares representing
approximately 7.6% of the total number of votes that may be cast on any
such matter.
As of November 24, 2004, GS Germany may be deemed to
beneficially own an aggregate of 792,845 shares of Common Stock, consisting
of: (i) 345,764 shares of Common Stock that are beneficially owned by LXH
II; (ii) 1,121.799 shares of Series A Preferred Stock that are beneficially
owned by GS Germany and that are convertible into 373,933 shares of Common
Stock; and (iii) 1,121.799 shares of Series B Preferred Stock that are
beneficially owned by GS Germany and that are convertible into 73,148
shares of Common Stock. The shares of Common Stock that may be deemed to be
beneficially owned by GS Germany represent approximately 1.9% of the
outstanding shares of Common Stock, based on there being 40,381,080 shares
of Common Stock outstanding as of November 22, 2004, as disclosed in the
November 2004 S-3. The foregoing percentage was calculated in accordance
with Rule 13d-3(d)(1) of the Exchange Act, which specifically excludes from
such calculation all securities not outstanding which are subject to
options, warrants, rights or conversion privileges and which are
beneficially owned by any person other than GS Germany. Accordingly, such
calculation does not include (i) the shares of Common Stock issuable upon
conversion of shares of Series A Preferred Stock and Series B Preferred
Stock and (ii) the shares of Common Stock issuable upon exercise of
currently exercisable options or options that become exercisable within 60
days, in the case of each of (i) and (ii), which are beneficially owned by
any person other than GS Germany. All outstanding shares of Series A
Preferred Stock and Series B Preferred Stock are entitled to vote, on an
as-converted basis, on all matters put to a vote or consent of the holders
of Common Stock. Therefore, in any such vote or consent, as of November 24,
2004, GS Germany will have the power to vote shares representing
approximately 0.9% of the total number of votes that may be cast on any
such matter.
As of November 24, 2004, GS Employee may be deemed to
beneficially own an aggregate of 6,026,877 shares of Common Stock,
consisting of: (i) 2,628,354 shares of Common Stock that are beneficially
owned by LXH II; (ii) 8,527.45 shares of Series A Preferred Stock that are
beneficially owned by GS Employee and that are convertible into 2,842,483
shares of Common Stock; and (iii) 8,527.45 shares of Series B Preferred
Stock that are beneficially owned by GS Employee and that are convertible
into 556,040 shares of Common Stock. The shares of Common Stock that may be
deemed to be beneficially owned by GS Employee represent approximately
13.8% of the outstanding shares of Common Stock, based on there being
40,381,080 shares of Common Stock outstanding as of November 22, 2004, as
disclosed in the November 2004 S-3. The foregoing percentage was calculated
in accordance with Rule 13d-3(d)(1) of the Exchange Act, which specifically
excludes from such calculation all securities not outstanding which are
subject to options, warrants, rights or conversion privileges and which are
beneficially owned by any person other than GS Employee. Accordingly, such
calculation does not include (i) the shares of Common Stock issuable upon
conversion of shares of Series A Preferred Stock and Series B Preferred
Stock and (ii) the shares of Common Stock issuable upon exercise of
currently exercisable options or options that become exercisable within 60
days, in the case of each of (i) and (ii), which are beneficially owned by
any person other than GS Employee. All outstanding shares of Series A
Preferred Stock and Series B Preferred Stock are entitled to vote, on an
as-converted basis, on all matters put to a vote or consent of the holders
of Common Stock. Therefore, in any such vote or consent, as of November 24,
2004, GS Employee will have the power to vote shares representing
approximately 6.7% of the total number of votes that may be cast on any
such matter.
As of November 24, 2004, Stone Street may be deemed to
beneficially own an aggregate of 625,368 shares of Common Stock, consisting
of: (i) 272,727 shares of Common Stock that are beneficially owned by LXH
II; (ii) 884.835 shares of Series A Preferred Stock that are beneficially
owned by Stone Street and that are convertible into 294,945 shares of
Common Stock; and (iii) 884.835 shares of Series B Preferred Stock that are
beneficially owned by Stone Street and that are convertible into 57,696
shares of Common Stock. The shares of Common Stock that may be deemed to be
beneficially owned by Stone Street represent approximately 1.5% of the
outstanding shares of Common Stock, based on there being 40,381,080 shares
of Common Stock outstanding as of November 22, 2004, as disclosed in the
November 2004 S-3. The foregoing percentage was calculated in accordance
with Rule 13d-3(d)(1) of the Exchange Act, which specifically excludes from
such calculation all securities not outstanding which are subject to
options, warrants, rights or conversion privileges and which are
beneficially owned by any person other than Stone Street. Accordingly, such
calculation does not include (i) the shares of Common Stock issuable upon
conversion of shares of Series A Preferred Stock and Series B Preferred
Stock and (ii) the shares of Common Stock issuable upon exercise of
currently exercisable options or options that become exercisable within 60
days, in the case of each of (i) and (ii), which are beneficially owned by
any person other than Stone Street. All outstanding shares of Series A
Preferred Stock and Series B Preferred Stock are entitled to vote, on an
as-converted basis, on all matters put to a vote or consent of the holders
of Common Stock. Therefore, in any such vote or consent, as of November 24,
2004, Stone Street will have the power to vote shares representing
approximately 0.7% of the total number of votes that may be cast on any
such matter.
As of November 24, 2004, LXH Corp. may be deemed to
beneficially own 221,325.7 shares of Common Stock, that also may be deemed
to be beneficially owned by LXH, LXH L.P. and GS Capital. The shares of
Common Stock that may be deemed to be beneficially owned by LXH Corp.
represent approximately 0.5% of the outstanding shares of Common Stock,
based on there being 40,381,080 shares of Common Stock outstanding as of
November 22, 2004, as disclosed in the November 2004 S-3. All outstanding
shares of Series A Preferred Stock and Series B Preferred Stock are
entitled to vote, on an as-converted basis, on all matters put to a vote or
consent of the holders of Common Stock. Therefore, in any such vote or
consent, as of November 24, 2004, LXH Corp. will have the power to vote
shares representing approximately 0.2% of the total number of votes that
may be cast on any such matter.
As of November 24, 2004, LXH L.P. may be deemed to beneficially
own 257,299.2 shares of Common Stock, that also may be deemed to be
beneficially owned by LXH and GS Capital. The shares of Common Stock that
may be deemed to be beneficially owned by LXH L.P. represent approximately
0.6% of the outstanding shares of Common Stock, based on there being
40,381,080 shares of Common Stock outstanding as of November 22, 2004, as
disclosed in the November 2004 S-3. All outstanding shares of Series A
Preferred Stock and Series B Preferred Stock are entitled to vote, on an
as-converted basis, on all matters put to a vote or consent of the holders
of Common Stock. Therefore, in any such vote or consent, as of November 24,
2004, LXH L.P. will have the power to vote shares representing
approximately 0.3% of the total number of votes that may be cast on any
such matter.
As of November 24, 2004, LXH beneficially owns 8,272,312 shares
of Common Stock. The shares of Common Stock beneficially owned by LXH
represent approximately 20.5% of the outstanding shares of Common Stock,
based on there being 40,381,080 shares of Common Stock outstanding as of
November 22, 2004, as disclosed in the November 2004 S-3. All outstanding
shares of Series A Preferred Stock and Series B Preferred Stock are
entitled to vote, on an as-converted basis, on all matters put to a vote or
consent of the holders of Common Stock. Therefore, in any such vote or
consent, as of November 24, 2004, LXH will have the power to vote shares
representing approximately 9.2% of the total number of votes that may be
cast on any such matter.
As of November 24, 2004, LXH II beneficially owns 6,252,688
shares of Common Stock. The shares of Common Stock beneficially owned by
LXH II represent approximately 15.5% of the outstanding shares of Common
Stock, based on there being 40,381,080 shares of Common Stock outstanding
as of November 22, 2004, as disclosed in the November 2004 S-3. All
outstanding shares of Series A Preferred Stock and Series B Preferred Stock
are entitled to vote, on an as-converted basis, on all matters put to a
vote or consent of the holders of Common Stock. Therefore, in any such vote
or consent, as of November 24, 2004, LXH II will have the power to vote
shares representing approximately 6.9% of the total number of votes that
may be cast on any such matter.
None of the Filing Persons or, to their knowledge, the persons
listed on Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii, II-C-i, II-C-ii,
II-D-i or II-D-ii hereto, beneficially owns any shares of Common Stock
other than as set forth herein.
(b) Each Filing Person shares the power to vote or direct the
vote and to dispose or to direct the disposition of shares of Common Stock
beneficially owned by such Filing Person as indicated above.
(c) Except as described above, no transactions in the shares of
Common Stock were effected by the Filing Persons, or, to their knowledge,
any of the persons listed on Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii,
II-C-i, II-C-ii, II-D-i or II-D-ii hereto, during the past sixty days.
(d) Except for clients of Goldman Sachs who may have the right
to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, any shares of Common Stock held in managed
accounts, no other person is known by any Filing Person to have the right
to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, any shares of Common Stock beneficially owned by
any Filing Person.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended by adding the following immediately before the
ultimate paragraph thereof:
LXH and LXH II presently intend to prepay, prior to the consummation
of the Registered Offering, all of the principal amount of the LXH Note and
the LXH II Note, respectively, by paying to Ciba SCC an aggregate amount in
cash equal to the outstanding principal amount of each of the Notes
together with any accrued and unpaid interest on each such amount through
the date of prepayment (the "Prepayment"). Upon consummation of the
Prepayment, the Notes will be repaid in full and the security interest
granted by each of LXH and LXH II to Ciba SCC pursuant to the Pledge
Agreements will automatically terminate.
The responses set forth in Item 4 of this Amendment No. 3 to the
Schedule 13D are incorporated herein by reference in their entirety.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 is hereby amended and restated in its entirety as follows:
Exhibit 1 Joint Filing Agreement, dated as of December 28, 2000.*
Exhibit 2 Stock Purchase Agreement, dated as of October 11, 2000, by and
among the Purchasers, Ciba and the Sellers.* Exhibit3
$20,680,780 7.5% Recourse Secured Pay-In-Kind Promissory Note,
due December 31, 2004, issued by LXH to Ciba SCC.*
Exhibit 4 $15,631,720 7.5% Recourse Secured Pay-In-Kind Promissory Note,
due December 31, 2004, issued by LXH II to Ciba SCC.*
Exhibit 5 Hexcel Agreement, dated as of October 11, 2000, by and between
the Purchasers and the Company.*
Exhibit 6 Governance Agreement, dated as of December 19, 2000, by and
among the Purchasers, the Company and the other parties listed
on the signature pages thereto.*
Exhibit 7 Registration Rights Agreement, dated as of December 19, 2000,
by and between the Company and the Purchasers.*
Exhibit 8 Pledge Agreement, dated as of December 19, 2000, by LXH in
favor of Ciba SCC.*
Exhibit 9 Pledge Agreement, dated as of December 19, 2000, by LXH II in
favor of Ciba SCC.*
Exhibit 10 Power of Attorney, dated as of January 6, 2003, relating to The
Goldman Sachs Group, Inc.*
Exhibit 11 Power of Attorney, dated as of January 6, 2003, relating to
Goldman, Sachs & Co.*
Exhibit 12 Power of Attorney, dated as of March 19, 2003, relating to GS
Advisors 2000, L.L.C.*
Exhibit 13 Power of Attorney, dated as of March 28, 2000, relating to
Goldman, Sachs & Co. oHG.*
Exhibit 14 Power of Attorney, dated as of March 19, 2003, relating to
Goldman, Sachs Management GP GmbH.*
Exhibit 15 Power of Attorney, dated as of February 24, 2003, relating to
GS Employee Funds 2000 GP, L.L.C.*
Exhibit 16 Power of Attorney, dated as of March 19, 2003, relating to
Stone Street 2000, L.L.C.*
Exhibit 17 Power of Attorney, dated as of March 19, 2003, relating to GS
Capital Partners 2000, L.P.*
Exhibit 18 Power of Attorney, dated as of March 19, 2003, relating to GS
Capital Partners 2000 Offshore, L.P.*
Exhibit 19 Power of Attorney, dated as of March 19, 2003, relating to GS
Capital Partners 2000 GmbH & Co. Beteiligungs KG.*
Exhibit 20 Power of Attorney, dated as of March 19, 2003, relating to GS
Capital Partners 2000 Employee Fund, L.P.*
Exhibit 21 Power of Attorney, dated as of March 19, 2003, relating to
Stone Street Fund 2000, L.P.*
Exhibit 22 Power of Attorney, dated as of March 19, 2003, relating to LXH
Holdings Corp.*
Exhibit 23 Power of Attorney, dated as of March 19, 2003, relating to LXH
Holdings, L.P.*
Exhibit 24 Power of Attorney, dated as of March 19, 2003, relating to LXH,
L.L.C.*
Exhibit 25 Power of Attorney, dated as of March 19, 2003, relating to LXH
II, L.L.C.*
Exhibit 26 Stock Purchase Agreement, dated as of December 18, 2002, by and
among the Company and the Limited Partnerships.*
Exhibit 27 Form of Amended and Restated Governance Agreement, among the
Original Purchasers, the Limited Partnerships and the Company.*
Exhibit 28 Form of Amended and Restated Registration Rights Agreement,
among the Company, the Original Purchasers and the Limited
Partnerships.*
Exhibit 29 Form of Certificate of Designations of Series A Preferred
Stock.*
Exhibit 30 Form of Certificate of Designations of Series B Preferred
Stock.*
Exhibit 31 Power of Attorney, dated as of December 12, 2003, relating to
The Goldman Sachs Group, Inc.
Exhibit 32 Power of Attorney, dated as of November 19, 2003, relating to
Goldman, Sachs & Co.
Exhibit 33 Power of Attorney, dated as of August 19, 2004, relating to GS
Advisors 2000, L.L.C.
Exhibit 34 Power of Attorney, dated as of August 5, 2004, relating to
Goldman, Sachs & Co. oHG.
Exhibit 35 Power of Attorney, dated as of August 19, 2004, relating to
Goldman, Sachs Management GP GmbH.
Exhibit 36 Power of Attorney, dated as of August 19, 2004, relating to GS
Employee Funds 2000 GP, L.L.C.
Exhibit 37 Power of Attorney, dated as of August 23, 2004, relating to
Stone Street 2000, L.L.C.
Exhibit 38 Power of Attorney, dated as of August 19, 2004, relating to GS
Capital Partners 2000, L.P.
Exhibit 39 Power of Attorney, dated as of August 19, 2004, relating to GS
Capital Partners 2000 Offshore, L.P.
Exhibit 40 Power of Attorney, dated as of August 19, 2004, relating to GS
Capital Partners 2000 GmbH & Co. Beteiligungs KG.
Exhibit 41 Power of Attorney, dated as of August 19, 2004, relating to GS
Capital Partners 2000 Employee Fund, L.P.
Exhibit 42 Power of Attorney, dated as of August 23, 2004, relating to
Stone Street Fund 2000, L.P.
Exhibit 43 Power of Attorney, dated as of August 19, 2004, relating to LXH
Holdings Corp.
Exhibit 44 Power of Attorney, dated as of August 19, 2004, relating to LXH
Holdings, L.P.
Exhibit 45 Power of Attorney, dated as of August 19, 2004, relating to
LXH, L.L.C.
Exhibit 46 Power of Attorney, dated as of August 19, 2004, relating to LXH
II, L.L.C.
-----------------------
* Previously filed.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
November 30, 2004
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN, SACHS & CO.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS ADVISORS 2000, L.L.C.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN, SACHS & CO. OHG
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN, SACHS Management GP GmbH
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS Employee FUnds 2000 GP, L.L.C.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
STONE STREET 2000, L.L.C.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000, L.P.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 GmbH & CO.
BETEILIGUNGS KG
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 EMPLOYEE FUnd,
L.P.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
STONE STREET FUND 2000, L.P.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
LXH HOLDINGS CORP.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
LXH HOLDINGS, L.P.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
LXH, L.L.C.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
LXH II, L.L.C.
By: /s/ Ted Chang
----------------------------------
Name: Ted Chang
Title: Attorney-in-fact
SCHEDULE I
----------
Schedule I is hereby amended and restated in its entirety as follows:
The name of each director of The Goldman Sachs Group, Inc. is set
forth below.
The business address of each person listed below is c/o Goldman, Sachs
& Co., 85 Broad Street, New York, NY 10004.
Each person is a citizen of the United States of America except for
Lord Browne of Madingley, who is a citizen of the United Kingdom, and Claes
Dahlback, who is a citizen of Sweden. The present principal occupation or
employment of each of the listed persons is set forth below.
Name Present Principal Occupation
Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The Goldman
Sachs Group, Inc.
Lloyd C. Blankfein President and Chief Operating Officer of The Goldman
Sachs Group, Inc.
Lord Browne of Madingley Group Chief Executive of BP plc
John H. Bryan Retired Chairman and Chief Executive Officer of Sara
Lee Corporation
Claes Dahlback Nonexecutive Chairman of Investor AB
William W. George Retired Chairman and Chief Executive Officer of
Medtronic, Inc.
James A. Johnson Vice Chairman of Perseus, L.L.C.
Lois D. Juliber Vice Chairman of Colgate-Palmolive Company
Edward M. Liddy Chairman of the Board, President and Chief Executive
Officer of The Allstate Corporation
Ruth J. Simmons President of Brown University
SCHEDULE II-A-i
Schedule II-A-i is hereby amended and restated in its entirety as follows:
The name, position and present principal occupation of each executive
officer of GS Advisors 2000, L.L.C., the sole general partner of GS Capital
Partners 2000, L.P. and GS Capital Partners 2000 Offshore, L.P., are set
forth below.
The business address for all the executive officers listed below is
c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except
as follows: The business address of Richard S. Sharp, Hughes B. Lepic,
Robert R. Gheewalla and Ulrika Werdelin is Peterborough Court, 133 Fleet
Street, London EC4A 2BB, England. The business address of Mary Nee is
Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The
business address of Joseph P. DiSabato is 555 California Street, 45th
Floor, San Francisco, CA 94104. The business address of Muneer A. Satter is
4900 Sears Tower, Chicago, IL 60606.
All executive officers listed below are United States citizens, except
as follows: Richard S. Sharp is a citizen of the United Kingdom. Sanjeev K.
Mehra is a citizen of India. Hughes B. Lepic is a citizen of France. Ulrika
Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation
Richard A. Friedman President Managing Director of Goldman, Sachs &
Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs &
Co
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs &
Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs &
Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs
International
Esta E. Stecher Assistant Managing Director of Goldman, Sachs &
Secretary Co.
Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs &
Co.
Muneer A. Satter Vice President Managing Director of Goldman, Sachs &
Co.
Steven M. Bunson Assistant Managing Director of Goldman, Sachs &
Secretary Co.
Elizabeth C. Treasurer Managing Director of Goldman, Sachs &
Fascitelli Co.
David J. Greenwald Assistant Managing Director of Goldman, Sachs &
Secretary Co.
David M. Weil Assistant Managing Director of Goldman, Sachs &
Treasurer Co.
Hughes B. Lepic Vice President Managing Director of Goldman Sachs
International
Russell E. Makowsky Assistant Managing Director of Goldman, Sachs &
Secretary Co.
Sarah G. Smith Assistant Managing Director of Goldman, Sachs &
Treasurer Co.
Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs &
Co.
Stephen S. Trevor Vice President Managing Director of Goldman Sachs
International
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs &
Co.
Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs &
Co.
Ben I. Adler Vice President Managing Director of Goldman, Sachs &
Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs &
Co.
Adrian M. Jones Vice President Managing Director of Goldman, Sachs &
Co.
John E. Bowman Vice President Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Vice President/ Managing Director of Goldman, Sachs &
Secretary Co.
Beverly L. O'Toole Assistant Vice President of Goldman, Sachs & Co.
Secretary
Matthew E. Tropp Assistant Associate General Counsel of Goldman,
Secretary Sachs &Co.
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co.
Mary Nee Vice President Executive Director of Goldman Sachs
(Asia) L.L.C.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs
International
SCHEDULE II-A-ii
Schedule II-A-ii is hereby amended and restated in its entirety as follows:
The name and principal occupation of each member of the Principal
Investment Area Investment Committee of Goldman, Sachs & Co., which
exercises the authority of Goldman, Sachs & Co. in managing GS Advisors
2000, L.L.C., GS Capital Partners 2000, L.P., GS Capital Partners 2000
Offshore, L.P., GS Capital Partners 2000 GmbH & Co. Beteiligungs KG, GS
Capital Partners 2000 Employee Fund, L.P. and Stone Street Fund 2000, L.P.,
are set forth below.
The business address for each member listed below is c/o Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, except as follows:
The business address of Richard S. Sharp, Robert R. Gheewalla and Hughes B.
Lepic is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England.
The business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL
60606.
All members listed below are United States citizens, except as
follows: Richard S. Sharp is a citizen of the United Kingdom, Sanjeev K.
Mehra is a citizen of India and Hughes B. Lepic is a citizen of France.
Name Present Principal Occupation
Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co.
Richard A. Friedman Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Managing Director of Goldman, Sachs & Co.
Henry Cornell Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Managing Director of Goldman Sachs International
Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Managing Director of Goldman, Sachs & Co.
Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc.
Scott Kapnick Managing Director of Goldman, Sachs & Co.
Melina E. Higgins Managing Director of Goldman, Sachs & Co.
Ben I. Adler Managing Director of Goldman, Sachs & Co.
David M. Weil Managing Director of Goldman, Sachs & Co.
Stephen S. Trevor Managing Director of Goldman, Sachs International
Robert R. Gheewalla Managing Director of Goldman, Sachs & Co.
Hughes B. Lepic Managing Director of Goldman, Sachs International
SCHEDULE II-B-i
Schedule II-A-ii is hereby amended and restated in its entirety as follows:
The name, position and present principal occupation of each executive
officer and director of Goldman, Sachs & Co. Finanz GmbH which is the sole
managing general partner of Goldman, Sachs & Co. oHG are set forth below.
The business address for each of the executive officers and directors
listed below is MesseTurm, 60308 Frankfurt am Main, Germany.
The executive officers and directors listed below are citizens of
Germany except Wayne L. Moore, who is a citizen of the United States.
Name Position Present Principal Occupation
Andreas Koernlein Managing Director Managing Director of Goldman, Sachs
& Co. oHG
Wayne L. Moore Managing Director Managing Director of Goldman, Sachs
& Co. oHG
Alexander C. Dibelius Managing Director Managing Director of Goldman, Sachs
& Co. oHG
Peter Hollmann Managing Director Managing Director of Goldman, Sachs
& Co. oHG
SCHEDULE II-B-ii
Schedule II-B-ii is hereby amended and restated in its entirety as follows:
The name, position and present principal occupation of each executive
officer of GS Management GP GmbH, the sole managing partner of GS Capital
Partners 2000 GmbH & Co. Beteiligungs KG, are set forth below.
The business address for all the executive officers listed below is
c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except
for Richards S. Sharp, whose business address is Peterborough Court, 133
Fleet Street, London EC4A 2BB, England.
All executive officers listed below are United States citizens, except
for Richards S. Sharp, who is a citizen of the United Kingdom.
Name Position Present Principal Occupation
Richard A. Friedman Managing Director Managing Director of Goldman,
Sachs & Co.
Joseph H. Gleberman Managing Director Managing Director of Goldman,
Sachs & Co.
Terence M. O'Toole Managing Director Managing Director of Goldman,
Sachs & Co.
David A. Viniar Managing Director Managing Director of Goldman,
Sachs & Co.
Henry Cornell Managing Director Managing Director of Goldman,
Sachs & Co.
Esta E. Stecher Managing Director Managing Director of Goldman,
Sachs & Co.
Elizabeth C. Fascitelli Managing Director Managing Director of Goldman,
Sachs & Co.
David J. Greenwald Managing Director Managing Director of Goldman,
Sachs & Co.
Sarah E. Smith Managing Director Managing Director of Goldman,
Sachs & Co.
Katherine B. Enquist Managing Director Managing Director of Goldman,
Sachs & Co.
John E. Bowman Managing Director Vice President of Goldman, Sachs
& Co.
Richard S. Sharp Managing Director Managing Director of Goldman
Sachs International
SCHEDULE II-C-i
Schedule II-C-i is hereby amended and restated in its entirety as follows:
The name, position and present principal occupation of each executive
officer of Stone Street 2000, L.L.C., the sole general partner of Stone
Street Fund 2000, L.P., are set forth below.
The business address for all the executive officers listed below is c/o
Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except as
follows: The business address of Richard S. Sharp, Hughes B. Lepic, Robert
R. Gheewalla and Ulrika Werdelin is Peterborough Court, 133 Fleet Street,
London EC4A 2BB, England. The business address of Mary Nee is Cheung Kong
Center, 68th Floor, 2 Queens Road, Central, Hong Kong. The business address
of Joseph P. DiSabato is 555 California Street, 45th Floor, San Francisco, CA
94104. The business address of Muneer A. Satter is 4900 Sears Tower,
Chicago, IL 60606.
All executive officers listed below are United States citizens, except
as follows: Richard S. Sharp is a citizen of the United Kingdom. Sanjeev K.
Mehra is a citizen of India. Hughes B. Lepic is a citizen of France. Ulrika
Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation
Peter M. Sacerdote Chairman/President Advisory Director of Goldman, Sachs
& Co.
Peter G. Sachs Vice President Senior Director of The Goldman
Sachs Group, Inc.
Richard A. Friedman Vice President Managing Director of Goldman, Sachs
& Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs
& Co
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs
& Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs
& Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs
International
Esta E. Stecher Vice Managing Director of Goldman, Sachs
President/Assistant & Co.
Secretary
Sanjeev K. Mehra Vice Managing Director of Goldman, Sachs
President/Treasurer & Co.
Muneer A. Satter Vice President Managing Director of Goldman, Sachs
& Co.
Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs
& Co.
Elizabeth C. Vice President Managing Director of Goldman, Sachs
Fascitelli & Co.
David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs
& Co.
David J. Greenwald Vice Managing Director of Goldman, Sachs
President/Assistant & Co.
Secretary
Hughes B. Lepic Vice President Managing Director of Goldman Sachs
International
Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs
& Co.
Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs
& Co.
Stephen S. Trevor Vice President Managing Director of Goldman Sachs
International
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs
& Co.
Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs
& Co.
Ben I. Adler Vice President Managing Director of Goldman, Sachs
& Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs
& Co.
John E. Bowman Vice President Vice President of Goldman, Sachs &
Co.
Raymond G. Matera Vice President Vice President of Goldman, Sachs &
Co.
Katherine B. Enquist Vice Managing Director of Goldman, Sachs
President/Secretary & Co.
Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs &
Co.
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs &
Co.
Matthew E. Tropp Assistant Secretary Associate General Counsel of
Goldman, Sachs &Co.
Mary Nee Vice President Executive Director of Goldman Sachs
(Asia) L.L.C.
Richard J. Stingi Vice President Vice President of Goldman, Sachs &
Co.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs
International
Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs
& Co.
Adrian M. Jones Vice President Managing Director of Goldman, Sachs
& Co.
SCHEDULE II-C-ii
Schedule II-C-ii is hereby deleted in its entirety.
SCHEDULE II-D-i
Schedule II-D-i is hereby amended and restated in its entirety as follows:
The name, position and present principal occupation of each executive
officer of GS Employee Funds 2000 GP, L.L.C., the sole general partner of GS
Capital Partners 2000 Employee Fund, L.P., are set forth below.
The business address for all the executive officers listed below is c/o
Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except as
follows: The business address of Richard S. Sharp, Hughes B. Lepic, Robert
R. Gheewalla and Ulrika Werdelin is 133 Fleet Street, London EC4A 2BB,
England. The business address of Mary Nee is Cheung Kong Center, 68th Floor,
2 Queens Road, Central, Hong Kong. The business address of Joseph P.
DiSabato is 555 California Street, 45th Floor, San Francisco, CA 94104. The
business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL 60606.
All executive officers listed below are United States citizens, except
as follows: Richard S. Sharp is a citizen of the United Kingdom. Sanjeev K.
Mehra is a citizen of India. Hughes B. Lepic is a citizen of France. Ulrika
Werdelin is a citizen of Sweden.
Name Position Present Principal Occupation
Richard A. Friedman President Managing Director of Goldman, Sachs
& Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs
& Co.
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs
& Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs
& Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs
International
Esta E. Stecher Vice President/ Managing Director of Goldman, Sachs
Assistant Secretary & Co.
Sanjeev K. Mehra Vice President/ Managing Director of Goldman, Sachs
Treasurer & Co.
Muneer A. Satter Vice President Managing Director of Goldman, Sachs
& Co.
Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs
& Co.
Elizabeth C. Vice President Managing Director of Goldman, Sachs
Fascitelli & Co.
David J. Greenwald Vice President/ Managing Director of Goldman, Sachs
Assistant Secretary & Co.
David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs
& Co.
Hughes B. Lepic Vice President Managing Director of Goldman Sachs
International
Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs
& Co.
Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs
& Co.
Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs
& Co.
Stephen S. Trevor Vice President Managing Director of Goldman Sachs
International
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs
& Co.
Robert R. Gheewalla Vice President Managing Director of Goldman, Sachs
& Co.
Ben I. Adler Vice President Managing Director of Goldman, Sachs
& Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs
& Co.
Adrian M. Jones Vice President Managing Director of Goldman, Sachs
& Co.
John E. Bowman Vice President Vice President of Goldman, Sachs &
Co.
Katherine B. Enquist Vice President/ Managing Director of Goldman, Sachs
Secretary & Co.
Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs &
Co.
Raymond G. Matera Vice President Vice President of Goldman, Sachs &
Co.
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs &
Co.
Mary Nee Vice President Executive Director of Goldman Sachs
(Asia) L.L.C.
Matthew E. Tropp Assistant Secretary Associate General Counsel of
Goldman, Sachs &Co.
Richard J. Stingi Vice President Vice President of Goldman, Sachs &
Co.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs
International
SCHEDULE II-D-ii
Schedule II-D-ii is hereby deleted in its entirety.
SCHEDULE III
Schedule III is hereby amended and restated in its entirety as follows:
On April 6, 2000, in connection with an industry-wide investigation by
the Securities and Exchange Commission (the "SEC") relating to the pricing
of government securities in advance refunding transactions, Goldman, Sachs
& Co. ("Goldman Sachs") joined in a global settlement resolving the SEC
investigation as well as a related qui tam lawsuit purportedly brought on
behalf of the United States entitled United States ex rel. Lissack v.
Goldman, Sachs & Co., et al., 95 Civ. 1363 (S.D.N.Y.)(BSJ). Pursuant to the
settlement, without admitting or denying the findings, Goldman Sachs
consented to the issuance of an SEC administrative order (SEA Rel. No.
42640) which, among other things, found that Goldman Sachs had violated
Sections 17(a)(2) and (3) of the Securities Act of 1933, as amended (the
"Securities Act"), in connection with such pricing of government
securities, required Goldman Sachs to cease and desist from violating such
provisions, and ordered Goldman Sachs to make payments totaling
approximately $5.1 million to the U.S. Treasury and $104,000 to two
municipalities. Under the global settlement, the qui tam lawsuit was
dismissed with prejudice, and the Internal Revenue Service agreed not to
challenge the tax-free nature of the refundings by virtue of the pricing of
such securities.
In November 2002, the SEC, the National Association of Securities
Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged
that five broker dealers, including Goldman Sachs, violated Section 17(a)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and Rule 17a-4 thereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and
3110, by allegedly failing to preserve electronic mail communications for
three years and/or to preserve electronic mail communications for the first
two years in an accessible place, and by allegedly having inadequate
supervisory systems and procedures in relation to the retention of
electronic mail communications. Without admitting or denying the
allegations, the five broker dealers, including Goldman Sachs, consented to
censure by the SEC, NASD and NYSE and to the imposition of a
cease-and-desist order by the SEC, and Goldman Sachs paid a total fine of
$1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also
undertook to review its procedures regarding the preservation of electronic
mail communications for compliance with the federal securities laws and
regulations and the rules of the NASD and NYSE, and to confirm within a
specified period of time that it has established systems and procedures
reasonably designed to achieve compliance with those laws, regulations and
rules.
On April 28, 2003, without admitting or denying liability, ten
investment banking firms, including Goldman Sachs, entered into global
settlements with the SEC, the NYSE, the NASD and certain states to resolve
the investigations relating to equity research analyst conflicts of
interest. Goldman Sachs was charged with violating NYSE Rules 342, 401, 472
and 475, and NASD Conduct Rules 2110, 2210 and 3010. Goldman Sachs also
agreed to a censure by the NYSE and the NASD and to pay a total of
$110,000,000 and to adopt a set of industry-wide reforms of its research
and investment banking businesses and to adopt certain restrictions on the
allocations of "hot" IPO shares. The terms of the global settlement were
entered in an order by a federal court in the Southern District of New York
on October 31, 2003 (Civil Action Number 03CV2944).
On September 4, 2003, Goldman Sachs and the SEC settled administrative
proceedings relating to certain trading in U.S. Treasury securities by
Goldman Sachs on the morning of October 31, 2001. The Staff of the SEC
alleged that Goldman Sachs violated (i) Section 15(c)(1) and Rule 15c1-2 of
the Exchange Act as a result of certain trading in U.S. Treasury bonds over
an eight minute period on October 31, 2001, and (ii) Section 15(f) of the
Exchange Act by failing to maintain policies and procedures specifically
addressed to the possible misuse of non-public information obtained from
outside consultants. Under the Offer of Settlement submitted by Goldman
Sachs and accepted by the SEC, without admitting or denying the SEC's
allegations, Goldman Sachs consented to the entry of an Order that, among
other things, (i) censured Goldman Sachs, (ii) directed Goldman Sachs to
cease and desist from committing or causing any violations of Section
15(c)(1)(A) & (C) and 15(f) and Rule 15c1-2 of the Exchange Act, (iii)
ordered Goldman Sachs to pay disgorgement and prejudgment interest in the
amount of $1,742,642, and a civil monetary penalty of $5 million, and (iv)
directed Goldman Sachs to conduct a review of its policies and procedures
and to adopt, implement and maintain policies and procedures consistent
with the Order and that review. Goldman Sachs also undertook to pay
$2,562,740 in disgorgement and interest relating to certain trading in U.S.
Treasury bond futures during the same eight minute period.
On July 1, 2004, Goldman Sachs and the SEC settled administrative
proceedings relating to communications from Goldman Sachs sales traders on
its Asian Shares Sales Desk to certain institutional customers and news
media concerning four international public securities offerings during the
period between October 1999 and March 2000. The SEC alleged (i) that
certain of these communications by Goldman Sachs employees were made after
the registration statements pertaining to those offerings were filed, but
not yet declared effective by the SEC, in violation of Section 5(b) of the
Securities Act, and (ii) that certain comments to the news media by Goldman
Sachs with respect to one of the offerings constituted an offer to sell
securities in violation of Section 5(c) of the Securities Act. The SEC also
alleged that Goldman Sachs failed to adequately supervise the Asian Shares
Sales Desk traders, as required by Section 15(b)(4)(E) of the Exchange Act.
Under the Offer of Settlement submitted by Goldman Sachs and accepted by
the SEC, without admitting or denying the SEC's allegations, Goldman Sachs
consented to the entry of an Order that, among other things, directed
Goldman Sachs to cease and desist from committing or causing any violations
of Sections 5(b) and 5(c) of the Securities Act., and ordered Goldman Sachs
to pay a civil monetary penalty of $2 million.