EXHIBIT 99.6
SUBSCRIPTION AGREEMENT
dated as of
August 17, 1998
among
INSILCO HOLDING CO.
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
15% Senior Exchangeable Preferred Stock due 2010
and
Warrants to purchase Common Stock
of
Insilco Holding Co.
TABLE OF CONTENTS
----------------------
Page
ARTICLE 1
Definitions
Section 1.01. Definitions.....................................................2
ARTICLE 2
Purchase and Sale
Section 2.01. Purchase and Sale...............................................3
Section 2.02. Closing.........................................................4
ARTICLE 3
Representations and Warranties of ExistingSub
Section 3.01. Corporate Existence and Power...................................4
Section 3.02. Corporate Authorization.........................................4
Section 3.03. Governmental Authorization......................................5
Section 3.04. Noncontravention................................................5
Section 3.05. Capitalization and Voting Rights................................5
Section 3.06. Valid Issuance of Securities....................................6
Section 3.07. Litigation......................................................6
ARTICLE 4
Representations and Warranties of Buyers
Section 4.01. Existence and Power.............................................6
Section 4.02. Authorization...................................................7
Section 4.03. Governmental Authorization......................................7
Section 4.04. Purchase for Investment.........................................7
Section 4.05. Private Placement...............................................7
Section 4.06. Litigation......................................................8
Section 4.07. Brokers or Finders' Fees........................................8
ARTICLE 5
Miscellaneous
Section 5.01. Rule 144A Resales...............................................9
Section 5.02. Notices........................................................10
Section 5.03. Amendments and Waivers.........................................11
Section 5.04. Successors and Assigns.........................................11
Section 5.05. Governing Law..................................................11
Section 5.06. Jurisdiction...................................................11
Section 5.07. Waiver Of Jury Trial...........................................12
Section 5.08. Counterparts; Third Party Beneficiaries........................12
Section 5.09. Entire Agreement...............................................12
Section 5.10. Severability...................................................12
Schedule A Schedule of Buyers, Purchase Price and Company Securities
Exhibit A Certificate of Incorporation of Insilco Holding Co.
Exhibit B Form of Warrant
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of August 17, 1998 between Insilco Holding Co., a
Delaware corporation ("ExistingSub") and the Persons named on Schedule A hereto
(each a "Buyer" and collectively, the "Buyers").
W I T N E S S E T H :
WHEREAS, Insilco ReorgSub Company, a wholly-owned subsidiary of
ExistingSub, has merged (the "Reorganization Merger") with and into Insilco
Corporation ("Insilco") with Insilco continuing as the surviving corporation and
as a wholly-owned subsidiary of ExistingSub on the terms and conditions set
forth in the Agreement and Plan of Merger dated as of March 24, 1998 between
ExistingSub, Insilco and Silkworm Acquisition Corporation ("MergerSub") (as the
same may be or have been amended from time to time, the "Merger Agreement");
WHEREAS, immediately following the effective time of the Reorganization
Merger, MergerSub will merge (the "Merger") with and into ExistingSub on the
terms and conditions set forth in the Merger Agreement;
WHEREAS, to finance a portion of the consideration payable in the
Merger, ExistingSub intends to issue shares of 15% Senior Exchangeable Preferred
Stock due 2010, par value $0.001 per share (the "Preferred Stock"), and warrants
to purchase shares of common stock, par value $0.001 per share (the "Warrants"
and, together with the Preferred Stock, the "Securities"); and
WHEREAS, ExistingSub desires to issue and sell the relevant Securities
to the Buyers, and each of the Buyers desires to purchase the relevant
Securities from ExistingSub, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person. For the purposes of this definition, the term "control" (including
its correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banking institutions in New York, New York are authorized or required
by law to close.
"Closing Date" means the date of the Closing.
"Common Shares" means shares of common stock, par value $0.001 per
share.
"CVC" means 399 Venture Partners, Inc., a wholly owned indirect
subsidiary of Citibank, N.A.
"DLJMB Entities" means DLJMB and the affiliated funds and entities
listed on the signature pages hereof.
"Effective Time" has the meaning ascribed thereto in the Merger
Agreement.
"Investors' Agreement" means the Investors' Agreement to be entered
into on the Closing Date among the Company, the DLJMB Entities and CVC.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or adverse claim of any
kind in respect of such property or asset.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Preferred Shares" means shares of Preferred Stock.
"Transaction Documents" means this Agreement, the Merger Agreement, the
Investors' Agreement and the Warrants.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Buyer Recitals
Certificate of Incorporation 3.08
Closing 2.02
Company Recitals
DLJMB Recitals
ExistingSub Recitals
Insilco Recitals
Merger Recitals
MergerSub Recitals
Merger Agreement Recitals
Preferred Stock Recitals
Purchase Price 2.01
Reorganization Merger Recitals
Securities Recitals
Warrants Recitals
ARTICLE 2
Purchase and Sale
Section 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, at the Effective Time, ExistingSub agrees to issue
and sell to each Buyer and each Buyer agrees, severally and not jointly, to
purchase from ExistingSub the Securities set forth opposite such Buyer's name on
Schedule A hereto. The purchase price for the Securities (the "Purchase Price")
is the amount in cash specified on Schedule A hereto. The sale of the Securities
and the payment of the Purchase Price shall be effected as provided in Section
2.02.
Section 2.02. Closing. The closing (the "Closing") of the purchase and
sale of the Securities hereunder shall take place at the offices of ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. At the Closing:
(a) Each Buyer shall deliver to ExistingSub, in immediately available
funds, the amount of the aggregate Purchase Price set forth opposite such
Buyer's name on Schedule A hereto, by wire transfer (or other means acceptable
to ExistingSub) to an account of ExistingSub with a bank in New York City
designated by ExistingSub, by notice to such Buyer.
(b) ExistingSub shall deliver to each Buyer certificates, or other
appropriate documentation, for the relevant Securities free and clear of any
Liens and preemptive rights and duly registered in the name of such Buyer.
ARTICLE 3
Representations and Warranties of ExistingSub
ExistingSub represents and warrants to each Buyer as of the date hereof
and as of the Closing Date that:
Section 3.01. Corporate Existence and Power. ExistingSub is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted and as proposed to be conducted following the
Merger.
Section 3.02. Corporate Authorization. The execution, delivery and
performance by ExistingSub of each of the relevant Transaction Documents and the
consummation of the transactions contemplated hereby and thereby (including the
issuance and sale of the Securities) are within ExistingSub's corporate powers
and have been duly authorized by all necessary corporate action on the part of
ExistingSub. Each of the relevant Transaction Documents constitutes or, when
executed, will constitute, a valid and binding agreement of ExistingSub,
enforceable against ExistingSub in accordance with its terms, except as limited
by (i) applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement or creditors' rights
generally, or (ii) laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
Section 3.03. Governmental Authorization. Except for compliance with
the matters referred to in Sections 3.03 and 4.03 of the Merger Agreement, the
execution, delivery and performance by ExistingSub of each of the relevant
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby require no order, license, consent, authorization or approval
of, or exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official.
Section 3.04. Noncontravention. The execution, delivery and performance
by ExistingSub of each of the relevant Transaction Documents and the
consummation of the transactions contemplated hereby and thereby do not and will
not (i) violate the certificate of incorporation or bylaws of ExistingSub, (ii)
violate any applicable law, rule, regulation, judgment, injunction, order or
decree, (iii) require any consent or other action by any Person under,
constitute a default under (with due notice or lapse of time or both), or give
rise to any right of termination, cancellation or acceleration of any right or
obligation of ExistingSub or to a loss of any benefit to which ExistingSub is
entitled under any provision of any agreement or other instrument binding upon
ExistingSub or any of ExistingSub's assets or properties or (iv) result in the
creation or imposition of any material Lien on any property or asset of
ExistingSub.
Section 3.05. Capitalization and Voting Rights. (a) At the Effective
Time, the authorized capital stock of ExistingSub shall consist of 15,000,000
Common Shares and 3,000,000 Preferred Shares and the outstanding capital stock
of ExistingSub will be 1,385,169 Common Shares, 1,400,000 Preferred Shares
and Warrants to purchase 110,453 Common Shares. The Form of Warrant is
attached hereto as Exhibit B.
(b) Except as set forth in this Section 3.05 and except for any
shares, securities, options or rights issued or granted by ExistingSub pursuant
to the Equity Unit Plan, the Direct Investment Plan and the Stock Option Plan,
there are, and immediately following the Effective Time there will be, no
outstanding (i) shares of capital stock or voting securities of ExistingSub,
(ii) securities of ExistingSub convertible into or exchangeable for shares of
capital stock or voting securities of ExistingSub, (iii) options, warrants or
other rights (including, without limitation, preemptive rights) to acquire from
ExistingSub, or other obligation of ExistingSub to issue, any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of ExistingSub or (iv) no obligation of ExistingSub
to repurchase or otherwise acquire or retire any shares of capital stock or any
convertible securities, rights or options of the type described in (i), (ii), or
(iii).
Section 3.06. Valid Issuance of Securities. Each of the Preferred
Shares which are being issued to the Buyers hereunder, have been duly and
validly authorized and when issued, sold and delivered in accordance with the
terms hereof for the consideration set forth herein, will be duly and validly
issued, fully paid and nonassessable and free of preemptive rights. The
Warrants, when executed and delivered, will constitute valid and binding
obligations of ExistingSub, enforceable in accordance with their terms, except
as limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement or creditors' rights
generally, or (ii) laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies. ExistingSub has reserved and
will keep available for issuance upon exercise of the Warrants the total number
of Warrant Shares (as defined in the Warrants) deliverable upon exercise of all
Warrants from time to time outstanding. The issuance of the Warrant Shares has
been duly and validly authorized and, when and if issued and sold in accordance
with the Warrants, the Warrant Shares will be duly and validly issued, fully
paid and nonassessable and free of preemptive rights.
Section 3.07. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of ExistingSub, threatened
against or affecting ExistingSub or any of its respective properties before any
court or arbitrator or any governmental body, agency or official which in any
manner challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by the Transaction Documents.
ARTICLE 4
Representations and Warranties of Buyers
Each Buyer represents and warrants to ExistingSub, severally as to
itself only and not jointly or as to any other Buyer, as of the date hereof and
as of the Closing Date that:
Section 4.01. Existence and Power. Such Buyer is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all powers (corporate, partnership or otherwise) and all
material governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted.
Section 4.02. Authorization. The execution, delivery and performance by
such Buyer of each of this Agreement, and when executed, the Investors'
Agreement and the consummation of the transactions contemplated hereby and
thereby are or, when executed, will be, within the powers (corporate,
partnership or otherwise) of such Buyer and have been or will have been duly
authorized by all necessary action on the part of such Buyer. This Agreement
constitutes and the Investors' Agreement, when executed, will constitute, a
valid and binding agreement of such Buyer, each enforceable in accordance with
their respective terms, except as limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii) laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies.
Section 4.03. Governmental Authorization. The execution, delivery and
performance by such Buyer of this Agreement and the Investors' Agreement and the
consummation of the transactions contemplated hereby and thereby require no
order, license, consent, authorization or approval of, or exemption by, or
action by or in respect of, or notice to, or filing or registration with, any
governmental body, agency or official.
Section 4.04. Purchase for Investment. Such Buyer is purchasing the
relevant Securities for investment for its own account and not with a view to,
or for sale in connection with, any distribution thereof.
Section 4.05. Private Placement. (a) Such Buyer understands that (i)
the offering and sale of the Securities hereby is intended to be exempt from
registration pursuant to Section 4(2) of the 1933 Act and (ii) there is no
existing public market for the relevant Securities, and there can be no
assurance that any Buyer will be able to sell or dispose of the relevant
Securities to be purchased by such Buyer.
(b) Such Buyer's financial situation is such that such Buyer
can afford to bear the economic risk of holding the relevant Securities acquired
hereunder for an indefinite period of time, and such Buyer can afford to suffer
the complete loss of the investment in the relevant Securities.
(c) Such Buyer's knowledge and experience in financial and
business matters are such that it is capable of evaluating the merits and risks
of the investment in the relevant Securities, or such Buyer has been advised by
a representative possessing such knowledge and experience.
(d) Such Buyer understands that the Securities acquired
hereunder are a speculative investment which involves a high degree of risk of
loss of the entire investment therein, that there are substantial restrictions
on the transferability of the Securities as set forth in the Investors'
Agreement, and that for an indefinite period following the date hereof there
will be no public market for the Securities and that, accordingly, it may not be
possible for such Buyer to sell the Securities in case of emergency or
otherwise.
(e) Such Buyer and its representatives, including, to the extent it
deems appropriate, its professional, financial, tax and other advisors, have had
the opportunity to review all documents provided to them in connection with the
investment in the Securities, and such Buyer understands and is aware of the
risks related to such investment.
(f) Such Buyer and its representatives have been given the
opportunity to examine all documents and to ask questions of, and to receive
answers from, ExistingSub and its representatives concerning the terms and
conditions of the acquisition of the Securities and the transactions
contemplated by the Transaction Documents and to obtain all additional
information which such Buyer or its representatives deem necessary.
(g) Such Buyer is an "accredited investor" as such term is
defined in Regulation D under the 1933 Act.
Section 4.06. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Buyer, threatened
against or affecting, such Buyer before any court or arbitrator or any
governmental body, agency or official which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions contemplated by this
Agreement or the Investors' Agreement.
Section 4.07. Brokers or Finders' Fees. Except as contemplated by the
Merger Agreement, there is no investment banker, broker, finder or other
intermediary which has been retained by, will be retained by or is authorized to
act on behalf of, such Buyer who might be entitled to any fee or commission from
ExistingSub, MergerSub, CVC or the DLJMB Entities upon consummation of the
transactions contemplated by this Agreement.
ARTICLE 5
Miscellaneous
Section 5.01. Rule 144A Resales. (a) If, in the opinion of counsel to a
Buyer, the Preferred Stock shall be eligible for resale by the Buyer without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to the provisions of Rule 144A promulgated thereunder ("Rule
144A"), ExistingSub hereby convenants and agrees to cooperate with each Buyer to
permit the resale by such Buyer of the Preferred Stock in accordance with the
provisions of Rule 144A.
(b) If it is necessary or advisable in connection with such resale
pursuant to Rule 144A, ExistingSub hereby covenants and agrees to:
(i) enter into such agreements (including purchase agreements and
registration rights agreements), which agreements may contain customary
covenants and representations and warranties of ExistingSub, provide
customary legal opinions, comfort letters from ExistingSub' independent
public accountants and other documentation and take such other actions
in connection therewith in order to expedite or facilitate the
disposition of the Preferred Stock, including providing reasonable
access to the officers and corporate records of ExistingSub and
register or qualify the Preferred Stock under the securities or Blue
Sky laws of such jurisdictions as the Buyer may reasonably request and
to continue such registration or qualification in effect so long as
required for resales pursuant to Rule 144A and to file such consents to
service of process or other documents as may be necessary in order to
effect such registration or qualification; provided however, the
ExistingSub shall not be required in connection therewith to qualify as
a foreign entity in any jurisdiction in which it is now not so
qualified or to take any action that would subject it to general
consent to service of process or taxation in any jursidiction in which
it is now not so subject;
(ii) prepare and furnish to each Buyer an offering memorandum in
form and substance reasonably acceptable to such Buyer and its counsel
and during such period as, in the opinion of counsel to the Buyer, an
offering memorandum is required by law to be delivered in connection
with resales pursuant to Rule 144A (A) not to make any amendment or
supplement to the offering memorandum of which such Buyer shall not
previously have been advised or to which such Buyer shall reasonably
object after being so advised, and (B) to prepare promptly, upon the
Buyer's reasonable request, any amendment or supplement to the offering
memorandum which may be necessary or advisable in connection with such
resales;
(iii) use its reasonable best efforts to effect the inclusion of
the Preferred Stock in PORTAL and to maintain the listing of the
Preferred Stock on PORTAL for so long as the Preferred Stock is
outstanding;
(iv) obtain the approval of The Depository Trust Company ("DTC")
for "book-entry" transfer of the Preferred Stock, and to comply with
all agreements set forth in the representation letters of ExistingSub
to DTC relating to the approval of the Preferred Stock by DTC for
"book-entry" transfer;
(v) provide a CUSIP number for the Preferred Stock and provide to
any transfer agent for the Preferred Stock certificates representing
the Preferred Stock which are in a form eligible for deposit with DTC;
and
(vi) so long as the Preferred Stock is outstanding and eligible for
resale pursuant to Rule 144A and ExistingSub is not subject to Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended, to make
available to any holder of Preferred Stock in connection with any sale
thereof and any prospective purchaser of such Preferred Stock from such
holder, the information required by Rule 144A(d)(4) under the
Securities Act.
Section 5.02. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given as follows:
if to any Buyer, to such Buyer at the address specified by such Buyer
on the signature pages of this Agreement or in a notice given by such Buyer to
ExistingSub for such purpose;
if to ExistingSub, to:
Insilco Holding Co.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice.
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
Section 5.03. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 5.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
Section 5.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
Section 5.06. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 5.02 shall be deemed
effective service of process on such party.
Section 5.07. Waiver Of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 5.08. Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement shall confer upon any Person other than the parties
hereto any rights or remedies hereunder.
Section 5.09. Entire Agreement. The Transaction Documents (including
the documents, schedules, annexes, appendices and exhibits attached hereto and
thereto and referred to herein and therein) constitute the entire agreement
between the parties with respect to the subject matter thereof and supersede all
prior agreements and understandings, both oral and written, between the parties
with respect to the subject matter thereof.
Section 5.10. Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
INSILCO CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
DLJ MERCHANT BANKING PARTNERS
II, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,as
managing general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MILLENNIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management
Corporation, as manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
UK INVESTMENT PLAN 1997
PARTNERS
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc., as
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management
Corporation, as managing general
partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ ESC II, L.P.
By: DLJ LBO Plans Management
Corporation, as manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
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SCHEDULE A
No. of No. of Aggregate
Preferred Warrant Purchase
Shares Shares Price
Investor ----- ----- -----
DLJ Merchant Banking Partners II, 881,895 41,325.0 22,047,375
L.P.
DLJ Merchant Banking Partners II- 35,121 1,646.0 878,025
A, L.P.
DLJ Offshore Partners II, C.V. L.P. 43,367 2,032.0 1,084,175
DLJ Diversified Partners, L.P. 51,560 2,416.0 1,289,000
DLJ Diversified Partners-A, L.P. 19,147 897.0 478,675
DLJMB Funding II, Inc. 156,577 7,337.0 3,914,425
DLJ Millennium Partners, L.P. 14,259 668.0 356,475
DLJ Millennium Partners-A, L.P. 2,781 130.0 69,525
DLJ EAB Partners, L.P. 3,960 186.0 99,000
UK Investment Plan 1997 Partners 23,333 1,093.0 583,325
DLJ ESC II, L.P. 166,303 7,793.0 4,157,575
DLJ First ESC, L.P. 1,697 80.0 42,425
-- --
Total 1,400,000 65,603 $35,000,000
EXHIBIT A
Certificate of Incorporation of Insilco Holding Co.
FIRST: The name of the Corporation is Insilco Holding Co.
SECOND: The address of its registered office in the State of Delaware
is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. the name of
its registered agent at such address is Corporation Service Company."
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 18,000,000, consisting of 15,000,000 shares of Common
Stock, par value $0.001 per share (the "Common Stock") and 3,000,000 shares of
Preferred Stock, par value $0.001 per share (the "Preferred Stock"). The Board
of Directors is hereby empowered to authorize by resolution or resolutions from
time to time the issuance of one or more classes or series of Preferred Stock
and fix the designations, powers, preferences and relative, participating,
optional or other rights, if any, and the qualifications, limitations or
restrictions thereof, if any, with respect to each such class or series of
Preferred Stock and the number of shares constituting each such class or series,
and to increase or decrease the number of shares of any such class or series to
the extent permitted by Delaware Law. Three million shares of Preferred Stock
are hereby designated as 15% Senior Exchangeable Preferred Stock Due 2010 and
shall have the designations, preferences and rights as set forth on Appendix 1
hereto.
FIFTH: The Board of Directors shall have the power to adopt, amend or
repeal the bylaws of the Corporation.
SIXTH: Election of directors need not be by written ballot unless the
bylaws of the Corporation so provide.
SEVENTH: (1) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2) (a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by Delaware Law. The right to indemnification conferred in this ARTICLE SEVENTH
shall also include the right to be paid by the Corporation the expenses incurred
in connection with any such proceeding in advance of its final disposition to
the fullest extent authorized by Delaware Law. The right to indemnification
conferred in this ARTICLE SEVENTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the officers, employees and agents of the Corporation
to such extent and to such effect as the Board of Directors shall determine to
be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE SEVENTH shall
not be exclusive of any other right which any person may otherwise have or
hereafter acquire.
(5) Neither the amendment nor repeal of this ARTICLE SEVENTH, nor the
adoption of any provision of this Certificate of Incorporation or bylaws of the
Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE
SEVENTH in respect of any acts or omissions occurring prior to such amendment,
repeal, adoption or modification.
EIGHTH: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE SEVENTH,
all rights and powers conferred herein on stockholders, directors and officers,
if any, are subject to this reserved power.
NINTH: The name and address of the incorporator are as follows:
NAME MAILING ADDRESS
---- ---------------
▇.▇.▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
APPENDIX 1
15% SENIOR EXCHANGEABLE
PREFERRED STOCK DUE 2010
of
INSILCO HOLDING CO.
(1) Number and Designation. 3,000,000 shares of the Preferred Stock of
the Corporation shall be designated as 15% Senior Exchangeable Preferred Stock
Due 2010 (the "Senior Preferred Stock").
(2) Rank. The Senior Preferred Stock shall, with respect to dividend
rights and rights on liquidation, dissolution and winding up, rank prior to all
classes of or series of common stock of the Corporation, including the
Corporation's common stock, par value $0.001 per share ("Common Stock"), and
each other class of capital stock of the Corporation, the terms of which provide
that such class shall rank junior to the Senior Preferred Stock or the terms of
which do not specify any rank relative to the Senior Preferred Stock. All equity
securities of the Corporation to which the Senior Preferred Stock ranks prior
(whether with respect to dividends or upon liquidation, dissolution, winding up
or otherwise), including the Common Stock, are collectively referred to herein
as the "Junior Securities." All equity securities of the Corporation with which
the Senior Preferred Stock ranks on a parity (whether with respect to dividends
or upon liquidation, dissolution or winding up) are collectively referred to
herein as the "Parity Securities." The respective definitions of Junior
Securities and Parity Securities shall also include any rights or options
exercisable for or convertible into any of the Junior Securities and Parity
Securities, as the case may be. The Senior Preferred Stock shall be subject to
the creation of Junior Securities.
(3) Dividends. (a) (i) The holders of shares of Senior Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the payment of dividends,
dividends (subject to Sections 3(a)(ii) and (iii) hereof) at a rate equal to 15%
per annum (on the basis of a 360 day year) (the "Dividend Rate") on the
Liquidation Value of each share of Senior Preferred Stock on and as of the most
recent Dividend Payment Date (as defined below). In the event the Corporation is
unable or shall fail to discharge its obligation to redeem all outstanding
shares of Senior Preferred Stock pursuant to paragraph 5(b) or 5(c) hereof, the
Dividend Rate shall increase by .25 percent per quarter (each, a "Default
Dividend") for each quarter or portion thereof following the date on which such
redemption was required to be made until cured, provided that the aggregate
increase shall not exceed 5%. Such dividends shall be payable in the manner set
forth below in Sections 3(a)(ii) and (iii) quarterly on January 31, April 30,
July 31 and October 31 of each year (unless such day is not a business day, in
which event on the next succeeding business day) (each of such dates being a
"Dividend Payment Date" and each such quarterly period being a "Dividend
Period"). Such dividends shall be cumulative from the date of issue, whether or
not in any Dividend Period or Periods there shall be funds of the Corporation
legally available for the payment of such dividends.
(ii) Prior to August 1, 2003 (the "Cash Pay Date"), dividends
shall not be payable in cash to holders of shares of Senior
Preferred Stock but shall, subject to Section 3(b) hereof,
accrete to the Liquidation Value in accordance with Section
4(a) hereof.
(iii) Following the Cash Pay Date, each such dividend shall
be payable in cash on the Liquidation Value per share of the
Senior Preferred Stock, in equal quarterly amounts (to which
the Default Dividend, if any, shall be added), to the holders
of record of shares of the Senior Preferred Stock, as they
appear on the stock records of the Corporation at the close of
business on such record dates, not more than 60 days or less
than 10 days preceding the payment dates thereof, as shall be
fixed by the Board of Directors. Accrued and unpaid dividends
for any past Dividend Periods may be declared and paid at any
time, without reference to any Dividend Payment Date, to
holders of record on such date, not more than 45 days
preceding the payment date thereof, as may be fixed by the
Board of Directors.
(b) At the written request of the holders of a majority of the shares
of Senior Preferred Stock, the Corporation shall, commencing on the first
Dividend Payment Date after such request and ending on the Cash Pay Date, be
required to pay all dividends on shares of Senior Preferred Stock by the
issuance of additional shares of Senior Preferred Stock ("Additional Shares").
The Additional Shares shall be identical to all other shares of Senior Preferred
Stock, except as set forth in Section 4. For the purposes of determining the
number of Additional Shares to be issued as dividends pursuant to this Paragraph
(b), such Additional Shares shall be valued at their Applicable Liquidation
Value as provided in Section 4(c).
(c) Holders of shares of Senior Preferred Stock shall not be entitled
to any dividends, whether payable in cash, property or stock, in excess of the
cumulative dividends, as herein provided, on the Senior Preferred Stock. Except
as provided in this Section 3, no interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on the Senior
Preferred Stock that may be in arrears.
(d) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends, except as described in the next succeeding sentence,
shall be declared or paid or set apart for payment on Parity Securities, for any
period unless (to the extent such dividends are payable in cash) full cumulative
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment on the Senior
Preferred Stock for all Dividend Periods terminating on or prior to the date of
payment of the dividend on such class or series of Parity Securities. When (to
the extent such dividends are payable in cash) dividends are not paid in full or
a sum sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon shares of the Senior Preferred Stock and all dividends declared
upon any other class or series of Parity Securities shall (in each case, to the
extent payable in cash) be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Senior Preferred Stock and
accumulated and unpaid on such Parity Securities.
(e) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Junior Securities) shall be declared or paid or set apart for payment or other
distribution declared or made upon Junior Securities, nor shall any Junior
Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan of the Corporation or any
subsidiary) (all such dividends, distributions, redemptions or purchases being
hereinafter referred to as a "Junior Securities Distribution") for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation, directly or
indirectly (except by conversion into or exchange for Junior Securities), unless
in each case (i) the full cumulative dividends on all outstanding shares of the
Senior Preferred Stock and any other Parity Securities shall (to the extent
payable in cash) have been paid or set apart for payment for all past Dividend
Periods with respect to the Senior Preferred Stock and all past dividend periods
with respect to such Parity Securities and (ii) (to the extent payable in cash)
sufficient funds shall have been paid or set apart for the payment of the
dividend for the current Dividend Period with respect to the Senior Preferred
Stock and the current dividend period with respect to such Parity Securities.
(4) Liquidation Preference. (a) In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
before any payment or distribution of the assets of the Corporation (whether
capital or surplus) shall be made to or set apart for the holders of Junior
Securities, the holders of the shares of Senior Preferred Stock shall be
entitled to receive an amount equal to the Liquidation Value of such share plus
any accrued and unpaid cash dividends to the date of distribution. "Liquidation
Value" on any date means, with respect to (x) any share of Senior Preferred
Stock other than any Additional Shares, the sum of (1) $25.00 per share and (2)
the aggregate of all dividends accreted on such share until the most recent
Dividend Payment Date upon which an accretion to Liquidation Value has occurred
(or if such date is a Dividend Payment Date upon which an accretion to
Liquidation Value has occurred, such date), provided that in the event of an
actual liquidation, dissolution or winding up of the Corporation or the
redemption of any shares of Senior Preferred Stock pursuant to Section 5
hereunder, the amount referred to in (2) shall be calculated by including
dividends accreting to the actual date of such liquidation, dissolution or
winding up or the redemption date, as the case may be, rather than the Dividend
Payment Date referred to above and provided further that in no event will
dividends accrete beyond the earlier of (i) the Cash Pay Date and (ii) the most
recent Dividend Payment Date prior to the Dividend Payment Date on which
dividends on the Senior Preferred Stock are payable in Additional Shares and (y)
any Additional Share, the Applicable Liquidation Value. All accretions to
Liquidation Value will be calculated using compounding on a quarterly basis.
Except as provided in the preceding sentences, holders of shares of Senior
Preferred Stock shall not be entitled to any distribution in the event of
liquidation, dissolution or winding up of the affairs of the Corporation. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of the
shares of Senior Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any Parity Securities,
then such assets, or the proceeds thereof, shall be distributed among the
holders of shares of Senior Preferred Stock and any such other Parity Securities
ratably in accordance with the respective amounts that would be payable on such
shares of Senior Preferred Stock and any such other stock if all amounts payable
thereon were paid in full. For the purposes of this paragraph (4), (i) a
consolidation or merger of the Corporation with one or more corporations, or
(ii) a sale or transfer of all or substantially all of the Corporation's assets,
shall not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of any Parity Securities,
after payment shall have been made in full to the holders of the Senior
Preferred Stock, as provided in this paragraph (4), any other series or class or
classes of Junior Securities shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of the Senior Preferred
Stock shall not be entitled to share therein.
(c) The "Applicable Liquidation Value" of any Additional Shares shall
be the Liquidation Value of Senior Preferred Stock outstanding immediately prior
to the first Dividend Payment Date occurring after a request for payment in
Additional Shares has been made in accordance with Section 3(b).
(5) Redemption. (a) Redemption At the Option of the Corporation. To the
extent the Corporation shall have funds legally available for such payment, the
Corporation may, at its option, redeem shares of Senior Preferred Stock, at any
time in whole but not in part, at redemption prices per share in cash set forth
in the table below, together with accrued and unpaid cash dividends thereon to
the date fixed for redemption, without interest:
Prior to
August 1, Percentage of Liquidation Value
--------- -------------------------------
2003 115.000
2004 107.500
2005 105.000
2006 102.500
Thereafter 100.000
(b) Redemption In the Event of a Change of Control. In the event of a
Change of Control, the Corporation shall, to the extent it shall have funds
legally available for such payment, offer to redeem all of the shares of Senior
Preferred Stock then outstanding, and shall redeem the shares of Senior
Preferred Stock of any holder of such shares that shall consent to such
redemption, upon a date no later than 30 days following the Change in Control,
at a redemption price per share equal to 101% of the Liquidation Value, in cash,
plus accrued and unpaid cash dividends thereon to the date fixed for redemption,
without interest.
"Change of Control" means such time as: (a) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended), other than any person or group comprised solely of the
Initial Investors, has become the beneficial owner, by way of merger,
consolidation or otherwise, of 50% or more of the voting power of all classes of
voting securities of the Corporation, and such person or group has become the
beneficial owner of a greater percentage of the voting power of all classes of
voting securities of the Corporation than that beneficially owned by the Initial
Investors; or (b) a sale or transfer of all or substantially all of the assets
of the Corporation to any person or group (other than any group consisting
solely of the Initial Investors or their affiliates) has been consummated; or
(c) during any period of two consecutive years, individuals who at the beginning
of such period constituted the Board of Directors of the Corporation (together
with any new directors whose election was approved by a vote of a majority of
the directors then still in office, who either were directors at the beginning
of such period or whose election or nomination for the election was previously
so approved) cease for any reason to constitute a majority of the directors of
the Corporation, then in office.
"Initial Investors" means the Stockholders (determined as of the
issuance of the Preferred Stock) and their Permitted Transferees, each as
defined in the Investors' Agreement.
"Investors' Agreement" means the Investors' Agreement dated as of
August 17, 1998 among Insilco Holding Co., DLJ Merchant Banking Partners II,
L.P., DLJ Merchant Banking Partners ▇▇-▇, ▇.▇., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇.▇.,
▇▇▇ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium-A, L.P., DLJMB Funding II, Inc., DLJ EAB
Partners, L.P., DLJ First ESC L.P., UK Investment Plan 1997 Partners, DLJ ESC
II, L.P., (collectively, the "DLJMB Funds"), and 399 Venture Partners, Inc., as
amended
(c) Mandatory Redemption. To the extent the Corporation shall have
funds legally available for such payment, on August 1, 2010, if any shares of
the Senior Preferred Stock shall be outstanding, the Corporation shall redeem
all outstanding shares of the Senior Preferred Stock, at a redemption price
equal to the aggregate Liquidation Value, in cash, together with any accrued and
unpaid cash dividends thereon to the date fixed for redemption, without
interest.
(d) Status of Redeemed Shares. Shares of Senior Preferred Stock which
have been issued and reacquired in any manner, including shares purchased or
redeemed, shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of the
class of Preferred Stock undesignated as to series and may be redesignated and
reissued as part of any series of the Preferred Stock; provided that no such
issued and reacquired shares of Senior Preferred Stock shall be reissued or sold
as Senior Preferred Stock.
(e) Failure to Redeem. If the Corporation is unable or shall fail to
discharge its obligation to redeem all outstanding shares of Senior Preferred
Stock pursuant to paragraph (5)(b) or 5(c) (each, a "Mandatory Redemption
Obligation"), such Mandatory Redemption Obligation shall be discharged as soon
as the Corporation is able to discharge such Mandatory Redemption Obligation. If
and so long as any Mandatory Redemption Obligation with respect to the Senior
Preferred Stock shall not be fully discharged, the Corporation shall not (i)
directly or indirectly, redeem, purchase, or otherwise acquire any Parity
Security or discharge any mandatory or optional redemption, sinking fund or
other similar obligation in respect of any Parity Securities (except in
connection with a redemption, sinking fund or other similar obligation to be
satisfied pro rata with the Senior Preferred Stock) or (ii) in accordance with
paragraph 3(e), declare or make any Junior Securities Distribution, or, directly
or indirectly, discharge any mandatory or optional redemption, sinking fund or
other similar obligation in respect of the Junior Securities.
(f) Failure to Pay Dividends. Notwithstanding the foregoing provisions
of this paragraph (5), unless full cumulative cash dividends (whether or not
declared) on all outstanding shares of Senior Preferred Stock shall have been
paid or contemporaneously are declared and paid or set apart for payment for all
dividend periods terminating on or prior to the applicable redemption date, none
of the shares of Senior Preferred Stock shall be redeemed, and no sum shall be
set aside for such redemption, unless shares of Senior Preferred Stock are
redeemed pro rata.
(6) Procedure for Redemption. (a) In the event the Corporation shall
redeem shares of Senior Preferred Stock pursuant to Sections 5(a) or (c), notice
of such redemption shall be given by first class mail, postage prepaid, mailed
not less than 30 days nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed at such holder's address as
the same appears on the stock register of the Corporation; provided that neither
the failure to give such notice nor any defect therein shall affect the validity
of the giving of notice for the redemption of any share of Senior Preferred
Stock to be redeemed except as to the holder to whom the Corporation has failed
to give said notice or except as to the holder whose notice was defective. Each
such notice shall state: (i) the redemption date; (ii) the number of shares of
Senior Preferred Stock to be redeemed; (iii) the redemption price; (iv) the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price; and (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date.
(b) In the case of any redemption pursuant to Sections 5(a) or (c)
hereof, notice having been mailed as provided in Section 6(a) hereof, from and
after the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price of the shares called for
redemption), dividends on the shares of Senior Preferred Stock so called for
redemption shall cease to accrue, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation shall so
require and the notice shall so state), such share shall be redeemed by the
Corporation at the redemption price aforesaid. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder thereof.
(c) In the case of a redemption pursuant to Section 5(b) hereof, notice
of such redemption shall be given by first class mail, postage prepaid, mailed
not more than 10 days following the occurrence of the Change of Control and not
less than 20 days prior to the redemption date, to each holder of record of the
shares to be redeemed at such holder's address as the same appears on the stock
register of the Corporation; provided that neither the failure to give such
notice nor any defect therein shall affect the validity of the giving of notice
for the redemption of any share of Senior Preferred Stock to be redeemed except
as to the holder to whom the Corporation has failed to give said notice or
except as to the holder whose notice was defective. Each such notice shall
state: (i) that a Change of Control has occurred; (ii) the redemption date;
(iii) the redemption price; (iv) that such holder may elect to cause the
Corporation to redeem all or any of the shares of Senior Preferred Stock held by
such holder; (v) the place or places where certificates for such shares are to
be surrendered for payment of the redemption price; and (vi) that dividends on
the shares the holder elects to cause the Corporation to redeem will cease to
accrue on such redemption date.
Upon receipt of such notice, the holder shall, within 20 days of
receipt thereof, return such notice to the Corporation indicating the number of
shares of Senior Preferred Stock such holder shall elect to cause the
Corporation to redeem, if any.
(d) In the case of a redemption pursuant to Section 5(b) hereof, notice
having been mailed as provided in Section 6(c) hereof, from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the redemption price of the shares called for
redemption), dividends on such shares of Senior Preferred Stock as the holder
elects to cause the Corporation to redeem shall cease to accrue, and all rights
of the holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon surrender
in accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such share shall be
redeemed by the Corporation at the redemption price aforesaid. In case fewer
than all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(7) Exchange. (a) Subject to the provisions of this paragraph (7) the
Corporation may, at its option, at any time and from time to time on any
Dividend Payment Date, exchange, to the extent it is legally permitted to do so,
all, but not less than all, outstanding shares (and fractional shares) of Senior
Preferred Stock, for Exchange Debentures, provided that (i) on or prior to the
date of exchange the Corporation shall have paid to or declared and set aside
for payment to the holders of outstanding shares of Senior Preferred Stock all
accrued and unpaid cash dividends on shares of Senior Preferred Stock through
the exchange date in accordance with the next succeeding paragraph; (ii) no
event of default under the indenture (as defined in such indenture) governing
the Exchange Debentures shall have occurred and be continuing; and (iii) no
shares of Senior Preferred Stock are held on such date by the DLJMB Funds or any
of their Affiliates, or any of their Permitted Transferees. The principal amount
of Exchange Debentures deliverable upon exchange of a share of Senior Preferred
Stock, adjusted as hereinafter provided, shall be determined in accordance with
the Exchange Ratio (as defined below).
Cash dividends on any shares of Senior Preferred Stock exchanged for
Exchange Debentures which have accrued but have not been paid as of the date of
exchange shall be paid in cash. In no event shall the Corporation issue Exchange
Debentures in denominations other than $1,000 or in an integral multiple
thereof. Cash will be paid in lieu of any such fraction of an Exchange Debenture
which would otherwise have been issued (which shall be determined with respect
to the aggregate principal amount of Exchange Debentures to be issued to a
holder upon any such exchange). Interest will accrue on the Exchange Debentures
from the date of exchange.
Prior to effecting any exchange hereunder, the Corporation shall
appoint a trustee to serve in the capacity contemplated by an indenture between
the Corporation and such trustee, containing customary terms and conditions.
The Exchange Ratio shall be, as of any Dividend Payment Date, $1.00 (or
fraction thereof) of principal amount of Exchange Debenture for each $1.00 of
(i) Liquidation Value plus (ii) accrued and unpaid cash dividends, if any, per
share of Senior Preferred Stock held by a holder on the applicable exchange
date.
"Affiliates" shall have the meaning ascribed such term in the
Investors' Agreement.
"Exchange Debentures" means 15% Subordinated Exchange Debentures due
2010 of the Corporation, to be issued pursuant to an indenture between the
Corporation and a trustee, containing customary terms and conditions, in
accordance with the Term Sheet attached as Annex A hereto.
"Permitted Transferees" shall have the meaning ascribed to such term in
the Investors' Agreement.
(b) Procedure for Exchange. (i) In the event the Corporation
shall exchange shares of Senior Preferred Stock, notice of such exchange shall
be given by first class mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the exchange date, to each holder of record of the
shares to be exchanged at such holder's address as the same appears on the stock
register of the Corporation; provided that neither the failure to give such
notice nor any defect therein shall affect the validity of the giving of notice
for the exchange of any share of Senior Preferred Stock to be exchanged except
as to the holder to whom the Corporation has failed to give said notice or
except as to the holder whose notice was defective. Each such notice shall
state: (A) the exchange date; (B) the number of shares of Senior Preferred Stock
to be exchanged and, if fewer than all the shares held by such holder are to be
exchanged, the number of shares to be exchanged from such holder; (C) the
Exchange Ratio; (D) the place or places where certificates for such shares are
to be exchanged for notes evidencing the Exchange Debentures to be received by
the exchanging holder; and (E) that dividends on the shares to be exchanged will
cease to accrue on such exchange date.
(ii) Prior to giving notice of intention to exchange, the
Corporation shall execute and deliver with a bank or trust
company selected by the Corporation an indenture containing
customary terms and conditions. The Corporation will cause the
Exchange Debentures to be authenticated on the Dividend
Payment Date on which the exchange is effective, and will pay
interest on the Exchange Debentures at the rate and on the
dates specified in such indenture from the exchange date.
The Corporation will not give notice of its intention
to exchange under paragraph 6(b)(i) hereof unless it shall
file at the place or places (including a place in the Borough
of Manhattan, The City of New York) maintained for such
purpose an opinion of counsel (who may be an employee of the
Corporation) to the effect that (i) the indenture has been
duly authorized, executed and delivered by the Corporation,
has been duly qualified under the Trust Indenture Act of 1939
(or that such qualification is not necessary) and constitutes
a valid and binding instrument enforceable against the
Corporation in accordance with its terms (subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and
subject to such other qualifications as are then customarily
contained in opinions of counsel experienced in such matters),
(ii) the Exchange Debentures have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the indenture and delivered in exchange for the
shares of Preferred Stock, will constitute valid and binding
obligations of the Corporation entitled to the benefits of the
indenture (subject as aforesaid), (iii) neither the execution
nor delivery of the indenture or the Exchange Debentures nor
compliance with the terms, conditions or provisions of such
instruments will result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or agreement or instrument,
known to such counsel, to which the Corporation or any of its
subsidiaries is a party or by which it or any of them is
bound, or any decree, judgment, order, rule or regulation,
known to such counsel, of any court or governmental agency or
body having jurisdiction over the Corporation and such
subsidiaries or any of their properties, (iv) the Exchange
Debentures have been duly registered for such exchange with
the Securities and Exchange Commission under a registration
statement that has become effective under the Securities Act
of 1933 (the "Act") or that the exchange of the Exchange
Debentures for the shares of Senior Preferred Stock is exempt
from registration under the Act, and (v) the Corporation has
sufficient legally available funds for such exchange such that
such exchange is permitted under applicable law.
(iii) Notice having been mailed as aforesaid, from and after
the exchange date (unless default shall be made by the
Corporation in issuing Exchange Debentures in exchange for the
shares called for exchange), dividends on the shares of Senior
Preferred Stock so called for exchange shall cease to accrue,
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation
the Exchange Debentures and any rights such holder, upon the
exchange, may have as a holder of the Exchange Debenture)
shall cease. Upon surrender in accordance with said notice of
the certificates for any shares so exchanged (properly
endorsed or assigned for transfer, if the Board of Directors
of the Corporation shall so require and the notice shall so
state), such share shall be exchanged by the Corporation for
the Exchange Debentures at the Exchange Ratio. In case fewer
than all the shares represented by any such certificate are
exchanged, a new certificate shall be issued representing the
unexchanged shares without cost to the holder thereof.
(iv) Each exchange shall be deemed to have been effected
immediately after the close of business on the relevant
Dividend Payment Date, and the person in whose name or names
any Exchange Debentures shall be issuable upon such exchange
shall be deemed to have become the holder of record of the
Exchange Debentures represented thereby at such time on such
Dividend Payment Date.
(v) Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon exchange of the
Senior Preferred Stock, the Corporation shall comply with all
applicable federal and state laws and regulations which
require action to be taken by the Corporation.
(c) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of notes
evidencing Exchange Debentures on exchange of the Senior Preferred Stock
pursuant hereto; provided that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of Exchange Debentures in a name other than that of the holder of the
Senior Preferred Stock to be exchanged and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(8) Voting Rights. (a) The holders of record of shares of
Senior Preferred Stock shall not be entitled to any voting rights except as
hereinafter provided in this paragraph (8), as otherwise provided by law or as
provided in the Investors' Agreement.
(b) If and whenever (i) four consecutive or six quarterly cash
dividends payable on the Senior Preferred Stock have not been paid in full, (ii)
for any reason (including the reason that funds are not legally available for a
redemption), the Corporation shall have failed to discharge any Mandatory
Redemption Obligation (including a redemption in the Event of a Change of
Control pursuant to Section 5(b) hereof), (iii) the Corporation shall have
failed to provide the notice required by Section 6(d) hereof within the time
period specified in such section or (iv) the Corporation shall have failed to
comply with Sections 3(d), 3(e) or 8(c) hereof, (1) the number of directors then
constituting the Board of Directors shall be increased by two and the holders of
a majority of the outstanding shares of Senior Preferred Stock, together with
the holders of shares of every other series of preferred stock upon which like
rights have been conferred and are exercisable (resulting form either the
failure to pay dividends or the failure to redeem) (any such series is referred
to as the "Preferred Shares"), voting as a single class regardless of series,
shall be entitled to elect the two additional directors to serve on the Board of
Directors at any annual meeting of stockholders or special meeting held in place
thereof, or at a special meeting of the holders of the Senior Preferred Stock
and the Preferred Shares called as hereinafter provided. Whenever (i) all
arrears in cash dividends on the Senior Preferred Stock and the Preferred Shares
then outstanding shall have been paid and cash dividends thereon for the current
quarterly dividend period shall have been paid or declared and set apart for
payment, (ii) the Corporation shall have fulfilled its Mandatory Redemption
Obligation, (iii) fulfilled its obligation to provide notice as specified in
subsection (b)(iii) hereof, or (iv) the Corporation shall have complied with
Sections 3(d), 3(e), or 8(c) hereof, as the case may be, then the right of the
holders of the Senior Preferred Stock to elect such additional two directors
shall cease (but subject always to the same provisions for the vesting of such
voting rights in the case of any similar future (i) arrearage in six consecutive
quarterly cash dividends, (ii) failure to fulfill any Mandatory Redemption
Obligation, (iii) failure to fulfill the obligation to provide the notice
required by Section 6(d) hereof within the time period specified in such section
or (iv) failure to comply with Sections 3(d), 3(e), or 8(c)) and the terms of
office of all persons elected as directors by the holders of the Senior
Preferred Stock shall forthwith terminate and the number of the Board of
Directors shall be reduced accordingly. At any time after such voting power
shall have been so vested in the holders of shares of Senior Preferred Stock and
the Preferred Shares, the secretary of the Corporation may, and upon the written
request of any holder of Senior Preferred Stock (addressed to the secretary at
the principal office of the Corporation) shall, call a special meeting of the
holders of the Senior Preferred Stock and of the Preferred Shares for the
election of the two directors to be elected by them as herein provided, such
call to be made by notice similar to that provided in the Bylaws of the
Corporation for a special meeting of the stockholders or as required by law. If
any such special meeting required to be called as above provided shall not be
called by the secretary within 20 days after receipt of any such request, then
any holder of shares of Senior Preferred Stock may call such meeting, upon the
notice above provided, and for that purpose shall have access to the stock books
of the Corporation. The directors elected at any such special meeting shall hold
office until the next annual meeting of the stockholders or special meeting held
in lieu thereof if such office shall not have previously terminated as above
provided. If any vacancy shall occur among the directors elected by the holders
of the Senior Preferred Stock and the Preferred Shares, a successor shall be
elected by the Board of Directors, upon the nomination of the then-remaining
director elected by the holders of the Senior Preferred Stock and the Preferred
Shares or the successor of such remaining director, to serve until the next
annual meeting of the stockholders or special meeting held in place thereof if
such office shall not have previously terminated as provided above.
(c) Without the written consent of a majority of the outstanding shares
of Senior Preferred Stock or the vote of holders of a majority of the
outstanding shares of Senior Preferred Stock at a meeting of the holders of
Senior Preferred Stock called for such purpose, the Corporation will not (i)
amend, alter or repeal any provision of the Certificate of Incorporation (by
merger or otherwise) so as to adversely affect the preferences, rights or powers
of the Senior Preferred Stock; provided that any such amendment that decreases
the dividend payable on or the Liquidation Value of the Senior Preferred Stock
shall require the affirmative vote of holders of each share of Senior Preferred
Stock at a meeting of holders of Senior Preferred Stock called for such purpose
or written consent of the holder of each share of Senior Preferred Stock; or
(ii) create, authorize or issue any class of stock ranking prior to, or on a
parity with, the Senior Preferred Stock with respect to dividends or upon
liquidation, dissolution, winding up or otherwise, or increase the authorized
number of shares of any such class or series, or reclassify any authorized stock
of the Corporation into any such prior or parity shares or create, authorize or
issue any obligation or security convertible into or evidencing the right to
purchase any such prior or parity shares, except that the Corporation may,
without such approval, create authorize and issue Parity Securities for the
purpose of utilizing the proceeds from the issuance of such Parity Securities
for the redemption or repurchase of all outstanding shares of Senior Preferred
Stock in accordance with the terms hereof or of the Investors' Agreement.
(d) In exercising the voting rights set forth in this paragraph (8),
each share of Senior Preferred Stock shall have one vote per share, except that
when any other series of preferred stock shall have the right to vote with the
Senior Preferred Stock as a single class on any matter, then the Senior
Preferred Stock and such other series shall have with respect to such matters
one vote per $25.00 of Liquidation Value or other liquidation preference. Except
as otherwise required by applicable law or as set forth herein, the shares of
Senior Preferred Stock shall not have any relative, participating, optional or
other special voting rights and powers and the consent of the holders thereof
shall not be required for the taking of any corporate action.
(9) Reports. So long as any of the Senior Preferred Stock is
outstanding, the Corporation will furnish the holders thereof with the quarterly
and annual financial reports that the Corporation is required to file with the
Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 or, in the event the Corporation is not
required to file such reports, reports containing the same information as would
be required in such reports.
(10) General Provisions. (a)The term "Person" as used herein means any
corporation, limited liability company, partnership, trust, organization,
association, other entity or individual.
(b) The term "outstanding", when used with reference to shares of
stock, shall mean issued shares, excluding shares held by the Corporation or a
subsidiary.
(c) The headings of the paragraphs, subparagraphs, clauses and
subclauses used herein are for convenience of reference only and shall not
define, limit or affect any of the provisions hereof.
(d) Each holder of Senior Preferred Stock, by acceptance thereof,
acknowledges and agrees that payments of dividends, interest, premium and
principal on, and exchange, redemption and repurchase of, such securities by the
Corporation are subject to restrictions on the Corporation contained in certain
credit and financing agreements.
ANNEX A
SUMMARY OF TERMS
OF INDENTURE FOR
15% SUBORDINATED EXCHANGE DEBENTURES
Parties: Insilco Holding Co. (the "Corporation") and
[ ], as trustee.
Issue: 15% Exchange Debentures (the "Exchange
Debentures") to be issued by the Corporation, at
its option, in exchange for any or all the
outstanding shares of 15% Senior Exchangeable
Preferred Stock due 2010 (the "Senior Preferred
Stock") issued on or about August 17, 1998 to
DLJ Merchant Banking Partners II, L.P. and
certain of its affiliates (the "DLJ Entities").
Maturity: August 1, 2010.
Interest: 15% annual rate, payable semi-annually.
Through the tenth semi-annual interest payment
period, quarterly interest will accrete on a
compound basis (i.e. non-cash pay) and increase
the face amount of the Exchange Debentures,
thereafter interest will be payable in cash.
Ranking: The Exchange Debentures will rank senior to all
other subordinated debt (but junior to the Senior
Discount Debentures due 2008 of the Corporation
and the Corporation's guaranty of Insilco
Corporation's indebtedness under its Senior
Credit Facility), preferred stock and common
equity of the Corporation.
Optional Redemption: The Exchange Debentures will be redeemable at
any time at the option of the Corporation, in
whole or in part, at the same redemption prices
set forth in the designation of the Senior
Preferred Stock set forth in Article 4 of the
Restated Certificate of Incorporation of the
Surviving Corporation.
Change of Control
Repurchase Right: In the event of a Change of Control of the
Corporation each holder of the Exchange
Debentures will have the right to require
the Corporation to repurchase all or any
part of such holder's Exchange Debentures
at a purchase price of 101% of the sum of
the accreted value thereof plus accrued and
unpaid cash interest, if any, to the
repurchase date.
Covenants: The Debentures will contain covenants that are
substantially the same as the covenants contained
in the Indenture for the Senior Discount
Debentures due 2008 of the Corporation and will
limit, among other things, the ability of the
Corporation and its subsidiaries (i) to incur
additional indebtedness, (ii) to pay dividends and
make other distributions on its capital stock, (iii)
to repurchase its capital stock or warrants,
options or other rights to acquire shares of its
capital stock or any Indebtedness subordinated to
the Exchange Debentures, (iv) to make certain
other Restricted Payments, (v) to make certain
investments or asset sales, (vi) to engage in
transactions with affiliates, (vii) to create liens,
(viii) to permit "layering" of indebtedness and
(ix) to merge or consolidate or transfer all or
substantially all of its assets.
EXHIBIT B
INSILCO HOLDING CO.
Class A Warrant for the Purchase of Shares of
Common Stock of Insilco Holding Co.
Class A
No. ____ Warrant to Purchase
____ Shares
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, VOTING AND OTHER MATTERS AS SET
FORTH IN THE INVESTORS' AGREEMENT (AS HEREIN DEFINED), COPIES OF WHICH
MAY BE OBTAINED UPON REQUEST FROM THE COMPANY.
FOR VALUE RECEIVED, INSILCO HOLDING CO., a Delaware corporation (the
"Company"), hereby certifies that [HOLDER], its successor or permitted assigns
(the "Holder"), is entitled, subject to the provisions of this Class A Warrant,
to purchase from the Company, at the times specified herein, _____ fully paid
and non-assessable shares of common stock of the Company, par value $ 0.001 per
share (the "Warrant Shares"), at a purchase price per share equal to the
Exercise Price (as hereinafter defined). The number of Warrant Shares to be
received upon the exercise of this Class A Warrant and the price to be paid for
a Warrant Share are subject to adjustment from time to time as hereinafter set
forth.
(a) DEFINITIONS.
(1) The following terms, as used herein, have the following meanings:
"Affiliate" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as amended.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"Common Stock" means the Common Stock, par value $0.001 per share,
of the Company or other capital stock of the Company that is not preferred as to
liquidation or dividends or any other security for which this Warrant may be
exercised pursuant to Section (i) hereof after the occurrence of any of the
transactions described in such Section.
"Duly Endorsed" means duly endorsed in blank by the Person or Persons
in whose name a stock certificate is registered or accompanied by a duly
executed stock assignment separate from the certificate with the signature(s)
thereon guaranteed by a commercial bank or trust company or a member of a
national securities exchange or of the National Association of Securities
Dealers, Inc.
"Exercise Price" means $0.001 per Warrant Share, such Exercise Price to
be adjusted from time to time as provided herein.
"Expiration Date" means ____, 2008 at 5:00 p.m. New York City time.
"Fair Market Value" means, with respect to one share of Common Stock on
any date, the Current Market Price Per Common Share as defined in paragraph
(h)(6) hereof.
"Investors Agreement" means the Investors Agreement dated as of the
date hereof among Insilco Holding Co., DLJ Merchant Banking Partners II, L.P.,
DLJ Merchant Banking Partners ▇▇-▇, ▇.▇., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇.▇., ▇▇▇
Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ Funding II, Inc., UK
Investment Plan 1997 Partners, DLJ EAB Partners, ▇.▇., ▇▇▇ ▇▇▇ ▇▇, ▇.▇., ▇▇▇
First ESC, L.P. and 399 Venture Partners, Inc. ("CVC").
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Principal Holders" means, on any date, the Holders of at least 50% of
the Warrants.
"Subscription Agreement" means the Subscription Agreement dated as of
the date hereof between the Company and the investors party thereto.
"transfer" shall have the meaning assigned to such term in the
Investors' Agreement.
"Warrants" means the Class A Warrants issued to the subscribers under
the Subscription Agreement.
(2) Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Investors' Agreement.
(b) EXERCISE OF WARRANT.
(1) The Holder is entitled to exercise this Warrant
in whole or in part at any time, or from time to time, until
the Expiration Date or, if such day is not a Business Day,
then on the next succeeding day that shall be a Business Day.
To exercise this Warrant, the Holder shall execute and deliver
to the Company a Warrant Exercise Notice substantially in the
form annexed hereto. No earlier than ten days after delivery
of the Warrant Exercise Notice, the Holder shall deliver to
the Company this Warrant Certificate duly executed by the
Holder, together with payment of the applicable Exercise
Price, provided, however, that in connection with a public
offering of the Common Stock, a Holder may deliver the Warrant
Exercise Notice and this Warrant Certificate to the Company
simultaneously. Upon such delivery and payment, the Holder
shall be deemed to be the holder of record of the Warrant
Shares subject to such exercise, notwithstanding that the
stock transfer books of the Company shall then be closed or
that certificates representing such Warrant Shares shall not
then be actually delivered to the Holder. Notwithstanding
anything herein to the contrary, in lieu of payment in cash of
the applicable Exercise Price, the Holder may elect (i) to
receive upon exercise of this Warrant, the number of Warrant
Shares reduced by a number of shares of Common Stock having
the aggregate Fair Market Value equal to the aggregate
Exercise Price for the Warrant Shares, (ii) to deliver as
payment, in whole or in part of the aggregate Exercise Price,
shares of Common Stock having the aggregate Fair Market Value
equal to the applicable portion of the aggregate Exercise
Price for the Warrant Shares or (iii) to deliver as payment,
in whole or in part of the aggregate Exercise Price, such
number of Warrants which, if exercised, would result in a
number of shares of Common Stock having an aggregate Fair
Market Value equal to the applicable portion of the aggregate
Exercise Price for the Warrant Shares. Notwithstanding
anything to the contrary in this paragraph (b)(1), if the
aggregate Fair Market Value of the Common Stock applied or
delivered pursuant to (i), (ii) or (iii) above exceeds the
aggregate Exercise Price, in no event shall the Holder be
entitled to receive any amounts from the Company.
(2) The Exercise Price may be paid in cash or by
certified or official bank check or bank cashier's check
payable to the order of the Company or by any combination of
such cash or check. The Company shall pay any and all
documentary, stamp or similar issue or transfer taxes payable
in respect of the issue or delivery of the Warrant Shares.
(3) If the Holder exercises this Warrant in part,
this Warrant Certificate shall be surrendered by the Holder to
the Company and a new Warrant Certificate of the same tenor
and for the unexercised number of Warrant Shares shall be
executed by the Company. The Company shall register the new
Warrant Certificate in the name of the Holder or in such name
or names of its transferee pursuant to paragraph (f) hereof as
may be directed in writing by the Holder and deliver the new
Warrant Certificate to the Person or Persons entitled to
receive the same.
(4) Upon surrender of this Warrant Certificate in
conformity with the foregoing provisions, the Company shall
transfer to the Holder of this Warrant Certificate appropriate
evidence of ownership of the shares of Common Stock or other
securities or property (including any money) to which the
Holder is entitled, registered or otherwise placed in, or
payable to the order of, the name or names of the Holder or
such transferee as may be directed in writing by the Holder,
and shall deliver such evidence of ownership and any other
securities or property (including any money) to the Person or
Persons entitled to receive the same, together with an amount
in cash in lieu of any fraction of a share as provided in
paragraph (e) below.
(c) RESTRICTIVE LEGEND. Certificates representing shares of Common
Stock issued pursuant to this Warrant shall bear a legend substantially in the
form of the legend set forth on the first page of this Warrant Certificate to
the extent that and for so long as such legend is required pursuant to the
Investors' Agreement.
(d) RESERVATION OF SHARES. The Company hereby agrees that at all times
it shall reserve for issuance and delivery upon exercise of this Warrant such
number of its authorized but unissued shares of Common Stock or other securities
of the Company from time to time issuable upon exercise of this Warrant as will
be sufficient to permit the exercise in full of this Warrant. All such shares
shall be duly authorized and, when issued upon such exercise, shall be validly
issued, fully paid and non-assessable, free and clear of all liens, security
interests, charges and other encumbrances or restrictions on sale and free and
clear of all preemptive rights, except to the extent set forth in the Investors'
Agreement.
(e) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant and in lieu
of delivery of any such fractional share upon any exercise hereof, the Company
shall pay to the Holder an amount in cash equal to such fraction multiplied by
the Current Market Price Per Common Share (as defined in paragraph (h)(6)) at
the date of such exercise.
The Company further agrees that it will not change the par value of the
Common Stock from par value $0.001 per share to any higher par value which
exceeds the Exercise Price then in effect, and will reduce the par value of the
Common Stock upon any event described in paragraph (h) that (i) provides for an
increase in the number of shares of Common Stock subject to purchase upon
exercise of this Warrant, in inverse proportion to and effective at the same
time as such number of shares is increased, but only to the extent that such
increase in the number of shares, together with all other such increases after
the date hereof, causes the aggregate Exercise Price of all Warrants (without
giving effect to any exercise thereof) to be greater than ____ or (ii) would,
but for this provision, reduce the Exercise Price below the par value of the
Common Stock.
(f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
(1) This Warrant and the Warrant Shares are subject
to the provisions of the Investors' Agreement, including the
restrictions on transfer. Each holder of this Warrant
Certificate by holding the same, consents and agrees that the
registered holder hereof may be treated by the Company and all
other persons dealing with this Warrant Certificate as the
absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby. The
Holder, by its acceptance of this Warrant, will be subject to
the provisions of, and will have the benefits of, the
Investors' Agreement to the extent set forth therein,
including the transfer restrictions and the registration
rights included therein.
(2) Subject to compliance with the transfer
restrictions set forth in the Investors' Agreement, upon
surrender of this Warrant to the Company, together with the
attached Warrant Assignment Form duly executed, the Company
shall, without charge, execute and deliver a new Warrant in
the name of the assignee or assignees named in such instrument
of assignment and, if the Holder's entire interest is not
being assigned, in the name of the Holder and this Warrant
shall promptly be canceled.
(g) LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the
Company of evidence satisfactory to it (in the exercise of its reasonable
discretion) of the loss, theft, destruction or mutilation of this Warrant
Certificate, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant Certificate, if mutilated, the Company shall execute and deliver a new
Warrant Certificate of like tenor and date.
(h) ANTI-DILUTION PROVISIONS. The Exercise Price of this Warrant and
the number of shares of Common Stock for which this Warrant may be exercised
shall be subject to adjustment from time to time upon the occurrence of certain
events as provided in this paragraph (h); provided that notwithstanding anything
to the contrary contained herein, the Exercise Price shall not be less than the
par value of the Common Stock, as such par value may be reduced from time to
time in accordance with paragraph (e).
(1) In case the Company shall at any time after the
date hereof (i) declare a dividend or make a distribution on
Common Stock payable in Common Stock, (ii) subdivide or split
the outstanding Common Stock, (iii) combine or reclassify the
outstanding Common Stock into a smaller number of shares, or
(iv) issue any shares of its capital stock in a
reclassification of Common Stock (including any such
reclassification in connection with a consolidation or merger
in which the Company is the surviving corporation), the
Exercise Price in effect at the time of the record date for
such dividend or distribution or of the effective date of such
subdivision, split, combination or reclassification shall be
proportionately adjusted so that, after giving effect to
paragraph (h)(9), the exercise of this Warrant after such time
shall entitle the holder to receive the aggregate number of
shares of Common Stock or other securities of the Company (or
shares of any security into which such shares of Common Stock
have been reclassified pursuant to clause (iii) or (iv) above)
which, if this Warrant had been exercised immediately prior to
such time, such holder would have owned upon such exercise and
been entitled to receive by virtue of such dividend,
distribution, subdivision, split, combination or
reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur.
(2) In case the Company shall issue or sell any
Common Stock (other than Common Stock issued (I) upon exercise
of the Warrants, (II) pursuant to any Common Stock related
employee compensation plan of the Company approved by the
Company's Board of Directors, or (III) upon exercise or
conversion of any security the issuance of which caused an
adjustment under paragraphs (h)(3) or (h)(4) hereof), the
Exercise Price to be in effect after such issuance or sale
shall be determined by multiplying the Exercise Price in
effect immediately prior to such issuance or sale by a
fraction, the numerator of which shall be the sum of (x) the
number of shares of Common Stock outstanding immediately prior
to the time of such issuance or sale multiplied by the Current
Market Price Per Common Share immediately prior to such
issuance or sale and (y) the aggregate consideration, if any,
to be received by the Company upon such issuance or sale, and
the denominator of which shall be the product of the aggregate
number of shares of Common Stock outstanding immediately after
such issuance or sale and the Current Market Price Per Common
Share immediately prior to such issuance or sale but in no
event will such fraction exceed 1. In case any portion of the
consideration to be received by the Company shall be in a form
other than cash, the fair market value of such noncash
consideration shall be utilized in the foregoing computation.
Such fair market value shall be determined by the Board of
Directors of the Company; provided that if the Principal
Holders shall object to any such determination, the Board of
Directors shall retain an independent appraiser reasonably
satisfactory to the Principal Holders to determine such fair
market value. The Holder shall be notified promptly of any
consideration other than cash to be received by the Company
and furnished with a description of the consideration and the
fair market value thereof, as determined by the Board of
Directors.
(3) In case the Company shall fix a record date for
the issuance of rights, options or warrants to the holders of
its Common Stock or other securities entitling such holders to
subscribe for or purchase for a period expiring within 60 days
of such record date shares of Common Stock (or securities
convertible into shares of Common Stock) at a price per share
of Common Stock (or having a conversion price per share of
Common Stock, if a security convertible into shares of Common
Stock) less than the Current Market Price Per Common Share on
such record date, the maximum number of shares of Common Stock
issuable upon exercise of such rights, options or warrants (or
conversion of such convertible securities) shall be deemed to
have been issued and outstanding as of such record date and
the Exercise Price shall be adjusted pursuant to paragraph
(h)(2) hereof, as though such maximum number of shares of
Common Stock had been so issued for an aggregate consideration
payable by the holders of such rights, options, warrants or
convertible securities prior to their receipt of such shares
of Common Stock. In case any portion of such consideration
shall be in a form other than cash, the fair market value of
such noncash consideration shall be determined as set forth in
paragraph (h)(2) hereof. Such adjustment shall be made
successively whenever such record date is fixed; and in the
event (i) that such rights, options or warrants are not so
issued or expire unexercised, or (ii) of a change in the
number of shares of Common Stock to which the holders of such
rights, options or warrants are entitled (other than pursuant
to adjustment provisions therein which are no more favorable
in their entirety than those contained in this paragraph (h)),
the Exercise Price shall again be adjusted to be the Exercise
Price which would then be in effect in the case of clause (i),
if such record date had not been fixed, or in the case of
clause (ii), if such holder had initially been entitled to
such changed number of shares of Common Stock.
(4) In case the Company shall sell or issue rights,
options (other than options issued pursuant to a plan
described in clause II of paragraph (h)(2)) or warrants
entitling the holders thereof to subscribe for or purchase
Common Stock (or securities convertible into shares of Common
Stock) or shall issue convertible securities, and the price
per share of Common Stock of such rights, options, warrants or
convertible securities (including, in the case of rights,
options or warrants, the price at which they may be exercised)
is less than the Current Market Price Per Common Share, the
maximum number of shares of Common Stock issuable upon
exercise of such rights, options or warrants or upon
conversion of such convertible securities shall be deemed to
have been issued and outstanding as of the date of such sale
or issuance, and the Exercise Price shall be adjusted pursuant
to paragraph (h)(2) hereof as though such maximum number of
shares of Common Stock had been so issued for an aggregate
consideration equal to the aggregate consideration paid for
such rights, options, warrants or convertible securities and
the aggregate consideration payable by the holders of such
rights, options, warrants or convertible securities prior to
their receipt of such shares of Common Stock. In case any
portion of such consideration shall be in a form other than
cash, the fair market value of such noncash consideration
shall be determined as set forth in paragraph (h)(2) hereof.
Such adjustment shall be made successively whenever such
rights, options, warrants or convertible securities are
issued; and in the event (i) that such rights, options or
warrants expire unexercised, or (ii) of a change in the number
of shares of Common Stock to which the holders of such rights,
options, warrants or convertible securities are entitled
(other than pursuant to adjustment provisions therein which
are no more favorable in their entirety than those contained
in this paragraph (h)), the Exercise Price shall again be
adjusted to be the Exercise Price which would then be in
effect in the case of clause (i), if such rights, options,
warrants or convertible securities had not been issued, or in
the case of clause (ii), if such holders had initially been
entitled to such changed number of shares of Common Stock. No
adjustment of the Exercise Price shall be made pursuant to
this paragraph (h)(4) to the extent that the Exercise Price
shall have been adjusted pursuant to paragraph (h)(3) upon the
setting of any record date relating to such rights, options,
warrants or convertible securities and such adjustment fully
reflects the number of shares of Common Stock to which the
holders of such rights, options, warrants or convertible
securities are entitled and the price payable therefor.
(5) In case the Company shall fix a record date for
the making of a distribution to holders of Common Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the surviving
corporation) of evidences of indebtedness, cash, assets or
other property (other than dividends payable in Common Stock
or rights, options or warrants referred to in, and for which
an adjustment is made pursuant to, paragraph (h)(3) hereof),
the Exercise Price to be in effect after such record date
shall be determined by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction,
the numerator of which shall be the Current Market Price Per
Common Share on such record date, less the fair market value
(determined as set forth in paragraph (h)(2) hereof) of the
portion of the assets, cash, other property or evidence of
indebtedness so to be distributed which is applicable to one
share of Common Stock, and the denominator of which shall be
such Current Market Price Per Common Share. Such adjustments
shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made,
the Exercise Price shall again be adjusted to be the Exercise
Price which would then be in effect if such record date had
not been fixed.
(6) For the purpose of any computation under
paragraph (e) or paragraph (h)(2), (3), (4) or (5) hereof, on
any determination date, the Current Market Price Per Common
Share shall be deemed to be the average (weighted by daily
trading volume) of the Daily Prices (as defined below) per
share of the Common Stock for the 20 consecutive trading days
ending three days prior to such date. "Daily Price" means (1)
if the shares of Common Stock then are listed and traded on
the New York Stock Exchange, Inc. ("NYSE"), the closing price
on such day as reported on the NYSE Composite Transactions
Tape; (2) if the shares of Common Stock then are not listed
and traded on the NYSE, the closing price on such day as
reported by the principal national securities exchange on
which the shares are listed and traded; (3) if the shares of
Common Stock then are not listed and traded on any such
securities exchange, the last reported sale price on such day
on the National Market of the National Association of
Securities Dealers, Inc. Automated Quotation System
("NASDAQ"); (4) if the shares of Common Stock then are not
listed and traded on any such securities exchange and not
traded on the NASDAQ National Market, the average of the
highest reported bid and lowest reported asked price on such
day as reported by NASDAQ; or (5) if such shares are not
listed and traded on any such securities exchange, not traded
on the NASDAQ National Market and bid and asked prices are not
reported by NASDAQ, then the average of the closing bid and
asked prices, as reported by The Wall Street Journal for the
over-the-counter market. If on any determination date the
shares of Common Stock are not quoted by any such
organization, the Current Market Price Per Common Share shall
be the fair market value of such shares on such determination
date as determined by the Board of Directors, without regard
to considerations of the lack of liquidity, applicable
regulatory restrictions or any of the transfer restrictions or
other obligations imposed on such shares set forth in the
Investors' Agreement. If the Principal Holders shall object to
any determination by the Board of Directors of the Current
Market Price Per Common Share, the Current Market Price Per
Common Share shall be the fair market value per share of
Common Stock as determined by an independent appraiser
retained by the Company at its expense and reasonably
acceptable to the Principal Holders. For purposes of any
computation under this paragraph (h), the number of shares of
Common Stock outstanding at any given time shall not include
shares owned or held by or for the account of the Company or
its subsidiaries.
(7) No adjustment in the Exercise Price shall be
required unless such adjustment would require an increase or
decrease of at least one percent in such price; provided that
any adjustments which by reason of this paragraph (h)(7) are
not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations
under this paragraph (h) shall be made to the nearest one
tenth of a cent or to the nearest hundredth of a share, as the
case may be.
(8) In the event that, at any time as a result of the
provisions of this paragraph (h), the holder of this Warrant
upon subsequent exercise shall become entitled to receive any
shares of capital stock or other securities of the Company
other than Common Stock, the number of such other shares so
receivable upon exercise of this Warrant shall thereafter be
subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions
contained herein.
(9) Upon each adjustment of the Exercise Price as a
result of the calculations made in paragraphs (h)(1), (2),
(3), (4) or (5) hereof, the number of shares for which this
Warrant is exercisable immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at
the adjusted Exercise Price, that number of shares of Common
Stock obtained by (i) multiplying the number of shares covered
by this Warrant immediately prior to this adjustment of the
number of shares by the Exercise Price in effect immediately
prior to such adjustment of the Exercise Price and (ii)
dividing the product so obtained by the Exercise Price in
effect immediately after such adjustment of the Exercise
Price.
(10) The Company shall notify all Holders of the
fixing of a record date for the purpose of payment of a cash
dividend to holders of Common Stock as soon as reasonably
practicable, but in no event less than 20 days prior to any
such record date.
(11) Not less than 10 nor more than 30 days prior to
the record date or effective date, as the case may be, of any
action which requires or might require an adjustment or
readjustment pursuant to this paragraph (h), the Company shall
forthwith file in the custody of the secretary or any
assistant secretary at its principal executive office and with
its stock transfer agent or its warrant agent, if any, an
officers' certificate showing the adjusted Exercise Price
determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment and the manner of
computing such adjustment. Each such officers' certificate
shall be signed by the chairman, president or chief financial
officer of the Company and by the secretary or any assistant
secretary of the Company. Each such officers' certificate
shall be made available at all reasonable times for inspection
by the Holder or any holder of a Warrant executed and
delivered pursuant to paragraph (f) and the Company shall,
forthwith after each such adjustment, mail a copy, by
first-class mail, of such certificate to the Holder.
(12) The Holder shall, at its option, be entitled to
receive, in lieu of the adjustment pursuant to paragraph
(h)(5) otherwise required thereof, on the date of exercise of
the Warrants, the evidences of indebtedness, other securities,
cash, property or other assets which such Holder would have
been entitled to receive if it had exercised its Warrants for
shares of Common Stock immediately prior to the record date
with respect to such distribution. The Holder may exercise its
option under this paragraph (h)(12) by delivering to the
Company a written notice of such exercise within seven days of
its receipt of the certificate of adjustment required pursuant
to paragraph (h)(11) to be delivered by the Company in
connection with such distribution.
(i) CONSOLIDATION, MERGER, OR SALE OF ASSETS. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock) or any sale or transfer of all or
substantially all of the assets of the Company or of the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, the Holder shall have the right thereafter to exercise this
Warrant for the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock for which this Warrant may have been exercised
immediately prior to such consolidation, merger, sale or transfer, assuming (i)
such holder of Common Stock is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person and (ii) in the case of a consolidation,
merger, sale or transfer which includes an election as to the consideration to
be received by the holders, such holder of Common Stock failed to exercise its
rights of election, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same for each share
of Common Stock held immediately prior to such consolidation, merger, sale or
transfer by other than a constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this paragraph (i) the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). Adjustments for events subsequent to the effective date of
such a consolidation, merger and sale of assets shall be as nearly equivalent as
may be practicable to the adjustments provided for in this
Warrant. In any such event, effective provisions shall be made in the
certificate or articles of incorporation of the resulting or surviving
corporation, in any contract of sale, conveyance, lease or transfer, or
otherwise so that the provisions set forth herein for the protection of the
rights of the Holder shall thereafter continue to be applicable; and any such
resulting or surviving corporation shall expressly assume the obligation to
deliver, upon exercise, such shares of stock, other securities, cash and
property. The provisions of this paragraph (i) shall similarly apply to
successive consolidations, mergers, sales, leases or transfers.
(j) NOTICES. Any notice, demand or delivery authorized by this Warrant
Certificate shall be in writing and shall be given to the Holder or the Company
as the case may be, at its address (or telecopier number) set forth below, or
such other address (or telecopier number) as shall have been furnished to the
party giving or making such notice, demand or delivery:
If to the Company: Insilco Holding Co.
c/o DLJ Merchant Banking Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
If to the Holder: [Holder]
[Address]
[Address]
Telecopy:
Attention:
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy or (ii)
if given by any other means, when received at the address specified herein.
(k) RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant, the
Holder shall not, by virtue hereof, be entitled to any rights of a shareholder
of the Company, including, without limitation, the right to vote, to receive
dividends or other distributions or to receive any notice of meetings of
shareholders or any notice of any proceedings of the Company except as may be
specifically provided for herein.
(l) GOVERNING LAW. THIS WARRANT CERTIFICATE AND ALL RIGHTS ARISING
HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED AND
ENFORCED IN ACCORDANCE WITH SUCH LAWS.
(m) AMENDMENTS; WAIVERS. Any provision of this Warrant Certificate may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Holder and the Company, or in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
IN WITNESS WHEREOF, the Company has duly caused this Warrant
Certificate to be signed by its duly authorized officer and to be dated as of
____ __ , 1998.
INSILCO CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Secretary
Acknowledged and Agreed:
[HOLDER]
By:__________________________
Name:
Title:
WARRANT EXERCISE NOTICE
(To be delivered prior to exercise of the Warrant)
To:Insilco Holding Co.
The undersigned hereby notifies you of its intention to exercise the
Warrant to purchase shares of Common Stock, par value $0.001 per share, of
Insilco Holding Co.
The undersigned intends to exercise the Warrant to purchase __________
shares of Common Stock (the "Shares") at $____ per Share (the Exercise Price
currently in effect pursuant to the Warrant). The undersigned intends to pay the
aggregate Exercise Price for the Shares in cash, or by certified or official
bank or bank cashier's check (or a combination of cash and check), as indicated
below.
-OR-
The undersigned intends to exercise the Warrant to purchase __________
Shares of Common Stock (the "Shares") and wishes, in lieu of paying the Exercise
Price of $____ per Share currently in effect pursuant to the Warrant, to receive
that number of shares reduced by a number of shares of Common Stock having an
aggregate Fair Market Value (as defined in the Warrant) equal to the aggregate
Exercise Price for the Shares.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase of
___________ shares of Common Stock (the "Shares"), par value $0.001 per Share,
of Insilco Holding Co. (the "Company") at $_____ per Share (the Exercise Price
currently in effect pursuant to the Warrant) and herewith makes payment of
$___________ (such payment being made in cash or by certified or official bank
or bank cashier's check payable to the order of the Company or by any permitted
combination of such cash or check), all on the terms and conditions specified in
the within Warrant Certificate, surrenders this Warrant Certificate and all
right, title and interest therein to the Company and directs that the Shares
deliverable upon the exercise of this Warrant be registered or placed in the
name and at the address specified below and delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase of
___________ shares of Common Stock (the "Shares"), par value $0.001 per Share,
of Insilco Holding Co. (the "Company") at $_____ per Share (the Exercise Price
currently in effect pursuant to the Warrant) (provided that in lieu of payment
of $_________, the undersigned will receive a number of Shares reduced by a
number of shares of Common Stock having an aggregate Fair Market Value (as
defined in the Warrant) equal to the aggregate Exercise Price for the Shares),
all on the terms and conditions specified in the within Warrant Certificate,
surrenders this Warrant Certificate and all right, title and interest therein to
the Company and directs that the Shares deliverable upon the exercise of this
Warrant be registered or placed in the name and at the address specified below
and delivered thereto.
Date: __________ __, ____.
--------------------------------
(Signature of Owner)
--------------------------------
(Street Address)
--------------------------------
(City) (State) (Zip Code)
Payment: $___________ cash
$___________ check
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised portion of the Warrant evidenced by the
within Warrant Certificate to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
WARRANT ASSIGNMENT FORM
Dated___________
FOR VALUE RECEIVED,___________________________________________________________
hereby sells, assigns and transfers unto,
_____________________________________________________________ (the "Assignee"),
(please type or print in block letters)
______________________________________________________________________________
(insert address)
its right to purchase up to _______ shares of Common Stock represented
by this Warrant and does hereby irrevocably constitute and appoint
_______________________ as its Attorney, to transfer the same on the
books of the Company, with full power of substitution in the premises.
Signature_____________________________
