EXHIBIT 99.8
AMENDMENT NO. 2
TO AGREEMENT AND PLAN OF MERGER
AMENDMENT dated as of August 12, 1998 among INSILCO CORPORATION, a
Delaware corporation ("Insilco" or the "Company"), INSILCO HOLDING CO., a
Delaware corporation (formerly known as INR Holding Co.) ("ExistingSub") and
SILKWORM ACQUISITION CORPORATION, a Delaware corporation ("MergerSub").
WHEREAS, the Company, ExistingSub and MergerSub have previously entered
into an Agreement and Plan of Merger (as amended to date and hereby, the "Merger
Agreement") dated as of March 24, 1998, providing for the merger of MergerSub
with and into ExistingSub; and
WHEREAS, the Company, ExistingSub and MergerSub desire to amend the
Merger Agreement as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. References. Unless otherwise specifically defined herein,
each term used herein which is defined in the Merger Agreement has the meaning
assigned to such term in the Merger Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Merger Agreement shall from and after the effective date of this Amendment refer
to the Merger Agreement as amended hereby, except in any instance in the Merger
Agreement where any such reference relates to the date of the execution of the
Merger Agreement in which instance such reference shall relate to the Merger
Agreement, as unamended hereby.
SECTION 2. Amendments. The Merger Agreement is hereby amended as
follows:
(a) Article FOURTH to the proposed certificate of incorporation of
ExistingSub as set forth in Exhibit A to the Merger Agreement shall be deleted
in its enirety, and replaced with the following:
"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."
(b) The Certificate of Designations, Preferences and Rights of the 15%
Senior Exchangeable Preferred Stock Due 2010 as set forth in Exhibit 1 to this
Amendment shall be appended to Exhibit A to the Merger Agreement.
SECTION 3. Counterparts; Effectiveness. This Amendment 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 Amendment shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment or have caused this Amendment to be duly executed by their respective
authorized officers as of the day and year first above written.
INSILCO CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and General
Counsel
INSILCO HOLDING CO.
By: /s/ Xxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and Secretary
SILKWORM ACQUISITION
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President and Secretary
EXHIBIT 1
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF 15% SENIOR EXCHANGEABLE
PREFERRED STOCK DUE 2010
of
INSILCO HOLDING CO.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, the undersigned, Xxxxxxx X.Xxxx, Vice President and Secretary, and
Xxxxx X. Xxxxx, Vice President and Treasurer, of Insilco Holding Co., a Delaware
corporation (hereinafter called the "Corporation"), pursuant to the provisions
of Sections 103 and 151 of the General Corporation Law of the State of Delaware,
do hereby make this Certificate of Designations and do hereby state and certify
that pursuant to the authority expressly vested in the Board of Directors of the
Corporation by the Certificate of Incorporation, the Board of Directors duly
adopted the following resolution:
RESOLVED, that, pursuant to Article Fourth of the Certificate of
Incorporation (which authorizes 3,000,000 shares of preferred stock, $0.001 par
value ("Preferred Stock"), of which no shares of Preferred Stock are currently
issued and outstanding), the Board of Directors hereby fixes the powers,
designations, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations and restrictions, of a
series of Preferred Stock.
RESOLVED, that each share of such series of Preferred Stock shall rank
equally in all respects and shall be subject to the following provisions:
(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 XX-X, X.X., XXX Xxxxxxxx Xxxxxxxx XX, X.X.,
XXX 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.
IN WITNESS WHEREOF, Insilco Holding Co. has caused this Certificate of
Designations to be signed and attested by the undersigned this 17th day of
August, 1998.
Insilco Holding Co.
By: -------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and Secretary
ATTEST:
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
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 In the event of a Change of Control of the
Repurchase Right: 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.
