As filed with the Securities and Exchange Commission on August 19, 1998
Registration No. 333-[_____]
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
Insilco Holding Co.
(Exact Name of issuer as specified in its charter)
-------------------------
Delaware 367,346,274,359 06-1158291
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification No.) Identification No.)
of incorporation 50 East Swedesford Road
or organization) Frazer, Pennsylvania 19355
(610) 296-6000
(Address of principal
executive offices)
Insilco Holding Co. and Insilco Corporation Equity Unit Plan
(Full title of the Plan)
-------------------------
Leslie G. Jacobs
Vice President - Human Resources
Insilco Holding Co.
425 Metro Place North
Dublin, Ohio 43017
(Name and address of agent for service)
Telephone number, including area code, of agent
for service: (614) 791-3106
Copies to:
John Buttrick
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Per Offering Registration
to be Registered Registered(1) Share(2) Price(2) Fee
- ------------------------------------------------------------------------------
Preferred Shares... 88,194 $45 $3,968,730 $1,171
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(1) Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) Estimated pursuant to Rule 457(h) of the General Rules and Regulations
under the Securities Act of 1933 (the "1933 Act") in respect of 88,194
shares issuable upon the settlement of Equity Units under the Insilco
Holding Co. and Insilco Corporation Equity Unit Plan.
==============================================================================
This Registration Statement Includes a Total of XX Pages.
Exhibit Index on Page X.
PART I
The following documents listed under this Part I and the
documents incorporated by reference under Item 3 of Part II to this Form S-8,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the 1933 Act, and are incorporated herein by reference.
ITEM 1. PLAN INFORMATION
The information required to be provided to participants pursuant
to this Item is set forth in the Prospectus for the Insilco Holding Co. and
Insilco Corporation Equity Unit Plan (the "Plan") together with the copy of the
Plan attached to the Prospectus as Exhibit A thereto.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The written statement required to be provided to participants
pursuant to this Item is set forth in the Prospectus referenced in Item 1
above.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Insilco Holding Co. (the "Company" or the "Registrant") hereby
files this Registration Statement with the Securities and Exchange Commission
(the "Commission") on Form S-8 to register 88,194 shares of the Company's
Preferred Shares ("Preferred Shares"), issuable pursuant to the Plan and such
indeterminate number of additional shares which may be offered and issued to
prevent dilution resulting from stock splits, stock dividends or similar
transactions pursuant to the Plan.
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Insilco Holding Co. hereby incorporates herein by reference the
following documents filed by Insilco Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (Exchange Act File No. 0-22098) or by the Company (Exchange
Act File No. 000-24813) thereunder:
(1) Insilco Corporation's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997;
(2) All reports filed by Insilco Corporation pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31, 1997; and
(3) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered herein have been sold or which
deregisters all securities then remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES
The par value of each Preferred Share will be equal to the settlement
amount of the equity unit in respect of which the Preferred Share is issued.
Each Preferred Share shall be entitled to dividends at the annual rate of 15%
of par value per annum. Dividends on a Preferred Share will be payable in-kind
for the first 5 years after the Preferred Share is issued and in cash
thereafter. Preferred Shares shall rank prior and senior to all classes of
common stock of the Company with respect to dividends and liquidation
preference, but shall rank after and junior to the Company's 15% Senior
Exchangeable Preferred Stock due 2010 and each other class of preferred stock
which is hereafter issued by the Company and designated as ranking prior and
senior to the Preferred Shares. The Preferred Shares shall be entitled to vote
only with respect to proposals that would decrease the dividend or liquidation
preference of the Preferred Shares, in which case each Preferred Share shall
have one vote, with a majority of the Preferred Shares required to approve such
a proposal. The Company shall have the right to redeem the Preferred Shares at
any time in the Company's sole discretion at the accreted value of the
Preferred Shares payable in cash or debentures of the Company.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the DGCL permits a corporation to indemnify any
of its directors or officers who was or is a party, or is threatened to be
made a party to any third party proceeding by reason of the fact that such
person is or was a director or officer of the corporation, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding, if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reason to believe that such person's conduct was unlawful. In a
derivative action, i.e., one by or in the right of the corporation, the
corporation is permitted to indemnify directors and officers against expenses
(including attorneys' fees) actually and reasonably incurred by them in
connection with the defense or settlement of an action or suit if they acted
in good faith and in a manner that no indemnification shall be made if such
person shall have been adjudged liable to the corporation, unless and only to
the extent that the court in which the action or suit was brought shall
determine upon application that the defendant directors or officers are fairly
and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
The Company provides indemnification to its officers and
directors to the extent authorized by Delaware law and maintains officer's and
director's liability in respect of such officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following is a complete list of exhibits filed as part of
this Registration Statement:
Exhibit
No.
- -------
4(a) Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Report on Form 8-K
(Exchange Act File No. 000-24813)filed with the Securities and
Exchange Commission on August 18, 1998 (the "Form 8-K"))
4(b) By-Laws of the Company (incorporated by reference to Exhibit 3.2
to the Form 8-K)
4(c) Form of Insilco Holding Co. and Insilco Corporation Equity Unit Plan
5 Opinion of counsel(1)
15 Letter re Unaudited Interim Financial Information
23(a) Consent of KPMG Peat Marwick LLP
23(b) Consent of counsel(1)
24 Power of Attorney (set forth on the signature pages hereof)
---------------
(1) To be filed by amendment.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "Securities
Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement; and
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the registrant's Annual Report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's Annual Report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Dublin, Ohio, on the 17th day of August, 1998.
INSILCO HOLDING CO.
By /s/ ROBERT L. SMIALEK
________________________________________
Robert L. Smialek
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below, constitutes and appoints Robert L. Smialek, David A. Kauer, and
Leslie G. Jacobs, and each of them, our true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, to do any and all
acts and things and execute, in the name of the undersigned, any and all
instruments which said attorneys-in-fact and agents may deem necessary or
advisable in order to enable Insilco Holding Co. to comply with the Securities
Act of 1933 and any requirements of the Securities and Exchange Commission in
respect thereof, in connection with the filing with the Securities and Exchange
Commission of the Registration Statement on Form S-8 under the Securities Act
of 1933, including specifically but without limitation, power and authority to
sign the name of the undersigned to such Registration Statement, and any
amendments to such Registration Statement (including post-effective
amendments), and to file the same with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, to sign
any and all applications, Registration Statements, notices or other documents
necessary or advisable to comply with applicable state securities laws, and to
file the same, together with other documents in connection therewith with the
appropriate state securities authorities, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and to perform
each and every act and thing requisite or necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ ROBERT L. SMIALEK Chairman and Chief Executive August 17, 1998
- ------------------------- Officer and Director
Robert L. Smialek
Vice President and Chief August 17, 1998
/s/ DAVID A. KAUER Financial Officer (Principal
- ----------------------- Financial and Accounting
David A. Kauer Officer)
/s/ WILLIAM F. DAWSON Director August 17, 1998
- -----------------------
William F. Dawson
/s/ THOMSON DEAN Director August 17, 1998
- -----------------------
Thompson Dean
INDEX TO EXHIBITS
The following is a complete list of exhibits filed as part of this Registration
Statement:
Exhibit Sequentially
Number Exhibit Numbered Page
- -------- ------- -------------
4(a) Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Report on Form 8-K (Exchange Act File No.
000-24813) filed with the Securities and Exchange
Commission on August 18, 1998 (the "Form 8-K"))........ (1)
4(b) By-Laws of the Company (incorporated by reference
to Exhibit 3.2 to the Form 8-K)........................ (1)
4(c) Form of Insilco Holding Co. Equity Unit Plan........... 8
5 Opinion of counsel..................................... (2)
15 Letter re Unaudited Interim Financial Information...... 31
23(a) Consent of KPMG Peat Marwick LLP....................... 32
23(b) Consent of counsel..................................... (2)
24 Power of Attorney (set forth on the signature pages
hereof)................................................ 6
- ---------------
(1) Incorporated by reference.
(2) To be filed by amendment.
EXHIBIT 4(c)
INSILCO HOLDING CO.
AND INSILCO CORPORATION
Equity Unit Plan
Section 1. Purpose. The purposes of the Insilco Holding Co. and
Insilco Corporation Equity Unit Plan are to promote the interests of Insilco
Holding Co. (the "Parent") and its stockholders and Insilco Corporation
("Insilco") by retaining exceptional executive personnel and other key
employees of Parent and its Subsidiaries and motivating such employees by
enabling them to participate in the long-term growth and financial success of
Parent and its Subsidiaries.
Section 2. Definitions. As used in the Plan, the following
terms shall have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person,
directly or indirectly, controlling, controlled by, or under common control
with, such Person; provided that no stockholder of Parent shall be deemed an
Affiliate of any other stockholder of Parent solely by reason of any investment
in Parent. For the purpose of this definition, the term "control" (including
with correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), when used with respect to any Person, means 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.
"Affiliated Employee Benefit Trust" means any trust that is a
successor to the assets held by a trust established under an employee benefit
plan subject to ERISA or any other trust established directly or indirectly
under such plan or any other such plan having the same sponsor.
"Award Agreement" means a written agreement executed by an
Employee evidencing an award of Equity Units under the Plan. Unless otherwise
provided by the Committee, the Award Agreement to be used for the award of
Equity Units under the Plan shall be substantially in the form attached as
Exhibit A hereto.
"Board" means the Board of Directors of Parent.
"Cause" means, unless otherwise defined in any Employment
Agreement or Award Agreement:
(a) a Participant's willful and continued failure substantially to
perform his duties (other than as a result of total or partial incapacity due
to physical or mental illness);
(b) a Participant's conviction of a felony arising from or any act
of fraud, embezzlement, or willful dishonesty by the Participant in relation
to the business or affairs of Parent or its Affiliates or any other felonious
conduct on the part of the Participant that is materially detrimental to the
best interests of Parent or its Affiliates;
(c) a Participant being repeatedly under the influence of illegal
drugs or alcohol while performing his duties; or
(d) any other willful act which is materially injurious to the
financial condition or business reputation of Parent or any of its Affiliates
as determined in the reasonable discretion of Parent, including a
Participant's breach of the provisions of any non-competition,
non-solicitation or confidentiality covenant in favor of Parent or its
Affiliates binding upon such Participant.
Notwithstanding the foregoing, no action or failure to act will
constitute "Cause" if the Participant believed in good faith that such action
or failure to act was in the best interest of Parent.
"Code" means the Internal Revenue Code of 1986, as the same may
be amended, and the rules and regulations promulgated thereunder.
"Committee" means a committee of the Board designated by the
Board to administer the Plan. Until otherwise determined by the Board, the full
Board shall be the Committee under the Plan.
"Common Shares" means shares of common stock, $0.001 par value,
of Parent or such other securities as may be designated by the Committee from
time to time.
"EBITDA" means the consolidated operating income of Parent, plus
(or minus) any income (or losses) from investments (excluding equity income
from Thermalex), plus depreciation, plus amortization, plus (or minus) any
unusual, non-recurring losses (or gains). The Committee may, in good faith,
establish such rules and policies as necessary or appropriate for the
calculation of EBITDA pursuant to the formula set forth above for purposes of
the Plan.
"Employee" means an employee of Parent or any Subsidiary.
"Exchange Act" means the Securities Exchange Act of 1934, as the
same may be amended, and the rules and regulations promulgated thereunder.
"Equity Unit" means any right granted under Section 6 of the
Plan.
"Fair Market Value" means, with respect to a Common Share or
other security of Parent, as of the date of determination, (i) if on the date
of determination such Common Shares or securities are Publicly Traded, the
average of the reported high and low sale prices of a Common Share or such
other security on such exchange or market as is the principal trading market
for such Common Shares or securities on the date of such determination (or, if
such date is not a trading date, the last preceding trading date) and (ii) if
on the date of determination such Common Shares or securities are not Publicly
Traded, the amount determined as of the close of the calendar quarter
immediately preceding the date of determination pursuant to the following
formula: the quotient of (x)(A) a multiple of 6.3 times the last 12 months'
EBITDA, minus (B) the sum of the consolidated debt of Parent and the accreted
value of all outstanding preferred stock of Parent, plus (C) a multiple of 9.0
times the last 12 months' equity in net income of Subsidiaries of of Parent,
divided by (y) the aggregate number of shares of all classes of common stock
of Parent outstanding, determined on a fully diluted basis, as of the close of
the calendar quarter immediately preceding the date of determination.
"Insilco" means Insilco Corporation, a Delaware corporation.
"Investors' Agreement" means the Investors' Agreement dated as
of August 17, 1998 among (i) Parent and (ii) DLJ Merchant Banking Partners II,
L.P., a Delaware limited partnership ("DLJMB"), DLJ Offshore Partners II,
C.V., a Netherlands Antilles limited partnership, DLJ Merchant Banking
Partners II-A, L.P., a Delaware limited partnership, DLJ Diversified Partners,
L.P., a Delaware limited partnership, DLJ Diversified Partners-A, L.P., a
Delaware limited partnership, DLJ EAB Partners, L.P., a Delaware limited
partnership, DLJ Millennium Partners, L.P., a Delaware limited partnership,
DLJ Millennium Partners-A, L.P., a Delaware limited partnership, DLJMB Funding
II, Inc., a Delaware corporation, UK Investment Plan 1997 Partners, a Delaware
partnership, DLJ First ESC, L.P., a Delaware limited partnership and DLJ ESC
II, L.P., a Delaware limited partnership, (each of the foregoing, a "DLJ
Entity", and collectively, the "DLJ Entities"), and 399 Venture Partners,
Inc., a wholly owned subsidiary of CitiBank, N.A. ("CVC").
"Parent" means Insilco Holding Co., a Delaware corporation.
"Participant" means any Employee receiving an Equity Unit under
the Plan.
"Permitted Transferee" means, for purposes of this Plan:
(i) in the case of any DLJ Entity, (A) any other DLJ Entity, (B) any
general or limited partner of any DLJ Entity (a "DLJ Partner"), and any
Affiliated Employee Benefit Trust or Person that is an Affiliate of any DLJ
Partner (collectively, the "DLJ Affiliates"), (C) any managing director,
general partner, director, limited partner, officer or employee of any DLJ
Entity or of any DLJ Affiliate, or the heirs, executors, administrators,
testamentary trustees, legatees or beneficiaries of any of the foregoing
persons referred to in this clause (C) (collectively, "DLJ Associates"),
(D) a trust, the beneficiaries of which, or a corporation, limited
liability company or partnership, the stockholders, members or general or
limited partners of which, include only DLJ Entities, DLJ Affiliates, DLJ
Associates, their spouses or their lineal descendants or (E) a voting
trustee for one or more DLJ Entities, DLJ Affiliates or DLJ Associates
under the terms of a voting trust designed to conform with the requirements
of the Insurance Law of the State of New York; and
(ii) in the case of CVC, (A) any nominee or trustee for or any general
or limited partner or shareholder of CVC, and any Person that is an
Affiliate of CVC (collectively, the "CVC Affiliates"), (B) any managing
director, general partner, limited partner, employee, officer or director
of CVC or a CVC Affiliate, or any spouse, lineal descendant, sibling,
parent, heir, executor, administrator, testamentary trustee, legatee or
beneficiary of any of the foregoing persons described in this clause (B)
(collectively, "CVC Associates"), (C) a "Co-Investment Scheme" being a
scheme under which certain officers, employees or partners of CVC or of its
adviser or manager are entitled (as individuals or through a body corporate
or any other vehicle) to acquire Common Shares which CVC would otherwise
acquire and a Co-Investment Scheme which holds Common Shares for a body
corporate or other vehicle may Transfer their Common Shares to another body
corporate or another vehicle which holds or is to hold Common Shares for
the Co-Investment Scheme or the officers, employees or partners entitled to
the Common Shares under the Co-Investment Scheme and (D) any trust, the
beneficiaries of which, or any corporation, limited liability company or
partnership, stockholders, members or general or limited partners of which
include only CVC, CVC Affiliates, CVC Associates, their spouses or their
lineal descendants.
"Person" means any 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.
"Plan" means this Insilco Holding Co. and Insilco Corporation
Equity Unit Plan.
"Preferred Share" means a share of capital stock of Parent
having the features and rights described in Exhibit B hereto.
"Public Offering" means an underwritten public offering of
Registrable Securities of Parent occurring after August 17, 1998 pursuant to an
effective registration statement under the Securities Act (other than pursuant
to a registration statement on Form S-4 or Form S-8 or any similar or successor
form).
"Publicly Traded" means, with respect to any security, that (i)
the security is of a class that is listed or quoted for trading on a national
exchange or NASDAQ or a similar national trading or quotation system and (ii)
the aggregate market capitalization with respect to such class of securities,
based on last sale price or last quoted asked price reported on such exchange
or trading system, is $25,000,000.00, excluding all shares of such class of
securities beneficially owned by any DLJ Affiliate or any CVC Affiliate or any
employee of Parent or Insilco.
"Registrable Securities" means at any time any Common Shares or
Warrants and any securities issued or issuable in respect of such Common
Shares or Warrants by way of conversion, exchange, stock dividend, split or
combination, recapitalization, merger, consolidation, other reorganization or
otherwise until (i) a registration statement covering such Common Shares or
Warrants has been declared effective by the SEC and such Common Shares or
Warrants have been disposed of pursuant to such effective registration
statement, (ii) such Common Shares or Warrants are sold under circumstances
in which all of the applicable conditions of Rule 144 (or any similar
provisions then in force) under the Securities Act are met or (iii) such
Common Shares or Warrants are otherwise transferred, Parent has delivered a
new certificate or other evidence of ownership for such Common Shares or
Warrants not bearing the legend required pursuant to the Investors' Agreement
and such Common Shares or Warrants may be resold without subsequent
registration under the Securities Act.
"Securities Act" means the Securities Act of 1933, as the same
may be amended, and the rules and regulations promulgated thereunder.
"Significant Event" means the first to occur of:
(i) any "person" (as such term is used in Section 3(a)(9) and 13(d)(3)
of the Exchange Act) other than (A) the DLJ Entities, CVC and/or their
respective Permitted Transferees or (B) any "group" (within the meaning of
such Section 13(d)(3)) of which any of the DLJ Entities, CVC and/or any of
their respective Permitted Transferees is a part, acquires, directly or
indirectly, by virtue of the consummation of any purchase, merger or other
combination, securities of Parent representing more than 50% of the
combined voting power of Parent's then outstanding voting securities
entitled to vote with respect to matters submitted to a vote of the
stockholders generally;
(ii) the consummation of a Public Offering which results in the DLJ
Entities, CVC, and/or their respective Permitted Transferees ceasing to
have beneficial ownership of securities of Parent representing, in the
aggregate, at least 45% of the combined voting power of Parent's then
outstanding voting securities entitled to vote with respect to matters
submitted to a vote of the stockholders generally;
(iii) individuals who constitute the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to such
date whose election, or nomination for election by Parent's shareholders,
was approved by a vote of at least two-thirds ( 2/3) of the directors then
comprising the Incumbent Board shall be, for purposes of this clause (iii),
considered as though such person were a member of the Incumbent Board;
(iv) the approval by the shareholders of Parent of a plan or agreement
providing (A) for a merger or consolidation of Parent other than with a
wholly-owned subsidiary and other than a merger or consolidation that would
result in the voting securities of Parent outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or be
being converted into voting securities of the surviving entity) more than
50% of the combined voting power of the voting securities of Parent or such
surviving entity outstanding immediately after such merger or
consolidation, or (B) for a plan of complete liquidation of Parent. If any
of the events enumerated in this paragraph (iv) occurs, the Board shall
determine the effective date of the Significant Event resulting therefrom
for purposes of this Agreement;
(v) a sale or transfer by Parent or any of its Subsidiaries of more
than 50%, in value, all of the consolidated assets of Parent and its
Subsidiaries to an entity which is not an Affiliate of Parent prior to such
sale or transfer;
(vi) August 17, 2008; or
(vii) any other event or circumstance determined by the Board to
constitute a Significant Event.
"Stockholder" means each Person (other than Parent) who shall
be a party to or bound by the Investors' Agreement, whether in connection with
the execution and delivery thereof, pursuant to Section 3.03 or Section 6.05
thereof, or otherwise, so long as such Person shall beneficially own any
Company securities.
"Subsidiary" means, with respect to any Person, any corporation
or other entity of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions are at the time directly or indirectly
owned by such Person.
"Termination Date" means, with respect to an Employee, the last
date on which the Employee performs services for Parent and its Subsidiaries in
exchange for compensation as an employee.
"Warrants" means the warrants issued by Parent to Stockholders
for the purchase of an aggregate of 110,453 Common Shares (subject to
adjustment as provided for herein).
Section 3. Administration.
(a) Authority of Committee. The Plan shall be administered by the
Committee. Subject to the terms of the Plan, applicable law and contractual
restrictions affecting Parent, and in addition to other express powers and
authorizations conferred on the Committee by the Plan, the Committee shall
have full power and authority to: (i) designate Participants; (ii) determine
the number of Equity Units to be awarded, or with respect to which payments,
rights, or other matters are to be calculated; (iii) determine the method or
methods by which Equity Units may be settled; (iv) determine whether, to what
extent, and under what circumstances cash or Preferred Shares payable with
respect to Equity Units shall be deferred if requested by the holder thereof;
(v) interpret and administer the Plan and any instrument or agreement relating
to, or Equity Unit granted under, the Plan; (vi) establish, amend, suspend, or
waive such rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and (vii) make any
other determination and take any other action that the Committee deems
necessary or desirable for the administration of the Plan.
(b) Committee Discretion Binding. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations, and
other decisions under or with respect to the Plan or any Equity Unit shall be
within the sole discretion of the Committee, may be made at any time and shall
be final, conclusive and binding upon all Persons, including Parent, any
Subsidiary, any Participant, any holder or beneficiary of any Equity Unit, any
shareholder and any Employee.
Section 4. Equity Units Available for Awards.
(a) Equity Units Available. Subject to adjustment as provided in
Section 4(b) and 4(c), the number of Equity Units which may be granted under
the Plan shall be 88,194.
(b) Adjustments. In the event that the Committee determines that
any dividend or other distribution (whether in the form of cash, Common Shares,
other securities or other property), recapitalization, stock split, reverse
stock split, reorganization, reclassification, merger, consolidation,
split-up, spin-off, combination, repurchase, or exchange of Common Shares or
other securities of Parent, issuance of warrants or other rights to purchase
Common Shares or other securities of Parent, or other similar corporate
transaction or event affects the Common Shares such that an adjustment is
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in good faith and in such manner as it may deem equitable,
adjust the number of (i) Equity Units available under the Plan, (ii) Equity
Units outstanding and (iii) Preferred Shares (or number and kind of other
securities or property) available for settlement of Equity Units.
(c) Sources of Preferred Shares Deliverable Under Equity Units.
Any Preferred Shares delivered pursuant to settlement of an Equity Unit may
consist, in whole or in part, of authorized and unissued Preferred Shares or of
treasury Preferred Shares.
Section 5. Eligibility. Any Employee, including any officer or
employee-director of Parent or any Subsidiary shall be eligible to be
designated a Participant.
Section 6. Equity Units.
(a) Grant. Subject to (i) execution of an Award Agreement by
Parent and an Employee and (ii) compliance with such other conditions as the
Committee shall in its sole discretion require, such Employee shall be granted
the number of Equity Units set forth opposite such Employee's name on Exhibit
C hereto. Subject to earlier termination pursuant to Section 7, each such
Equity Unit shall be canceled and settled as set forth in Section 6(b).
Additional Employees may be granted Equity Units available under the Plan as
determined by the Committee.
(b) Vesting. All Equity Units shall be 100% vested.
(c) Settlement of Equity Units. Each Equity Unit held by a
Participant shall be canceled upon the earlier of the occurrence of a
Significant Event or the Participant's Termination Date in exchange for the
applicable amount set forth below (the "Equity Unit Settlement Amount") paid in
method and form described below:
(i) Significant Event. Within 30 days after the occurrence of a
Significant Event, each Equity Unit held by a Participant shall be canceled
in exchange for the payment to the Participant of an amount equal to the
Fair Market Value of a Common Share as of the date of such Significant
Event, less any withholdings under Section 8(d).
(ii) Termination of Employment Other than for Cause. If a
Participant's employment with Parent and its Subsidiaries is terminated by
reason of the Participant's resignation, retirement, disability or death or
a termination by Parent for any reason other than Cause, each Equity Unit
held by the Participant shall be canceled in exchange for payment to the
Participant (or, in the case of the Participant's death, to the
Participant's estate) within 30 days after such termination, of the Fair
Market Value of a Common Share as of the Participant's Termination Date,
less any withholding under Section 8(d).
(iii) Termination of Employment For Cause. If a Participant's
employment with Parent and its Subsidiaries is terminated by Parent for
Cause, each Equity Unit held by the Participant shall be canceled in
exchange for payment to the Participant within 30 days after such
termination of the lesser of (x) the Fair Market Value of a Common Share as
of the Participant's Termination Date, or (y) $45.00, less any withholding
under Section 8(d).
(iv) Form of Payment. With respect to payments under this Section 6,
the Committee shall determine in its sole discretion whether Equity Units
held by a Participant shall be settled in cash paid by Insilco or Preferred
Shares issued by Parent or a combination of cash paid by Insilco and
Preferred Shares issued by Parent; provided that the Participant (or in the
event of the Participant's death, the executor or administrator of the
Participant's estate) shall be entitled to elect that at least 50% of the
value of the Participant's Equity Units must be settled in cash paid by
Insilco; provided further, however, that if Insilco is effectively
prohibited from settling the Equity Units in cash under the terms of any
agreement to which Parent or Insilco is a party, or any of the indentures
governing any debt securities issued by Parent, Insilco or any other
Subsidiary of Parent, settlement may be effected through a promissory note
issued by Insilco having such commercially reasonable terms as may be
determined by Insilco in its reasonable discretion and an interest rate
equal to the interest rate that would be payable by Insilco on a loan taken
as of the date of the issuance of such note under any then current bank
revolving credit facility or, if no such facility is then in place, an
interest rate equal to the rate payable by Parent or Insilco on incremental
borrowing from a commercial bank at the time of issuance of such note, and
provided further that in any event such note shall become due at such time
as the prohibitions described above shall lapse.
(d) Prior Taxability. If the Internal Revenue Service finally
determines that a Participant must recognize taxable income in connection with
the Participant's cancellation and termination of unexercised option rights
under the Insilco Corporation 1993 Long-Term Incentive Stock Option Plan and
the related grant of Equity Units under the Plan, such Participant shall be
entitled to elect to cancel a sufficient number of Equity Units to satisfy the
related tax liability. The Equity Units shall be canceled in exchange for a
cash payment by Insilco to such Participant within 30 days after the
Participant's written notice of the final determination of the Internal
Revenue Service is received by the Committee in an amount equal to the Fair
Market Value of a Common Share on the date of such notice.
Section 7. Amendment and Termination.
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time subject
to Section 7(b); provided that no such amendment, alteration, suspension,
discontinuation or termination shall be made without shareholder approval if
such approval is necessary to comply with any tax or regulatory requirement
for which or with which the Board deems it necessary or desirable to qualify
or comply. Notwithstanding anything to the contrary herein, the Committee may
amend the Plan in such manner as may be necessary so as to have the Plan
conform with local rules and regulations in any jurisdiction outside the
United States.
(b) Amendments to Equity Units. Subject to the terms of the Plan
and applicable law, the Committee may at any time waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Equity Unit theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would adversely affect the
rights of any Participant or any holder or beneficiary of any Equity Unit
theretofore granted shall not to that extent be effective without the consent
of the affected Participant, holder or beneficiary.
Section 8. General Provisions.
(a) Nontransferability. No Equity Unit shall be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered by a
Participant, except by will or the laws of descent and distribution.
(b) No Rights to Equity Units. No Employee, or other Person shall
have any claim to be granted any Equity Units, and there is no obligation for
uniformity of treatment of Employees, Participants, or holders or beneficiaries
of Equity Units. The terms and conditions of Equity Units need not be the same
with respect to each recipient.
(c) Preferred Share Certificates. In the event any Equity Units are
settled in Preferred Shares, certificates issued in respect of such Preferred
Shares shall, unless the Committee otherwise determines, be registered in the
name of the Participant. Such stock certificate shall carry such appropriate
legends, and such written instructions shall be given to Parent's transfer
agent, as may be deemed necessary or advisable by counsel to Parent in order to
comply with the requirements of the Securities Act, any state securities laws
or any other applicable laws. All such certificates for Preferred Shares or
other securities delivered under the Plan shall be subject to such stop
transfer orders and other restrictions as the Committee may deem advisable
under the Plan or the rules, regulations and other requirements of the
Securities and Exchange Commission or any stock exchange upon which such
Preferred Shares or other securities are then listed and any applicable laws
or rules or regulations, and the Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to such
restrictions.
(d) Withholding. A Participant may be required to pay to Parent or
any Subsidiary, and Parent or any Subsidiary shall have the right and is hereby
authorized to withhold from any payment due or transfer made under any Equity
Units or under the Plan or from any compensation or other amount owing to a
Participant the amount (in cash, Preferred Shares, other securities, or other
property) of any applicable withholding taxes in respect of an Equity Unit,
and to take such other action as may be necessary in the opinion of Parent to
satisfy all obligations for the payment of such taxes. The Committee may, in
its sole discretion, provide for additional cash payments to holders of Equity
Units to defray or offset any tax liability related to the Equity Units.
(e) Award Agreements. Each grant of Equity Units hereunder shall
be evidenced by an Award Agreement which shall be delivered to the Participant
and shall specify the terms and conditions of the Equity Units and any rules
applicable thereto.
(f) No Limit on Other Compensation Arrangements. Nothing contained
in the Plan shall prevent Parent or any Subsidiary from adopting or continuing
in effect other compensation arrangements, which may, but need not, provide
for the grant of equity units, options, restricted stock, Common Shares and
other types of awards (subject to shareholder approval if such approval is
required), and such arrangements may be either generally applicable or
applicable only in specific cases.
(g) No Right to Employment. The grant of Equity Units shall not be
construed as giving a Participant the right to be retained in the employ or
service of Parent or any Subsidiary or interfere in any way with the right of
Parent or any Subsidiary to terminate his or her employment at any time,
subject to any obligations under any Employment Agreement covering the
Participant.
(h) Rights as a Stockholder. No Participant or holder or
beneficiary of any Equity Units shall have any rights as a stockholder with
respect to any Preferred Shares unless and until he or she has become the
holder of such Preferred Shares.
(i) Governing Law. The validity, construction, and effect of the
Plan and any rules and regulations relating to the Plan and any Award Agreement
shall be determined in accordance with the laws of the State of Delaware.
(j) Severability. If any provision of the Plan or any Award
Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable
in any jurisdiction or as to any Person or Equity Unit, or would disqualify the
Plan or any Equity Unit under any law deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to the applicable
laws, or if it cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent of the Plan or
the Award Agreement, such provision shall be stricken as to such jurisdiction,
Person or Equity Unit and the remainder of the Plan and any such Award
Agreement shall remain in full force and effect.
(k) Other Laws. The Committee may refuse to issue or transfer any
Equity Units, Preferred Shares or other consideration under the Plan if, acting
in its sole discretion, it determines that the issuance or transfer of such
Equity Units, Preferred Shares or such other consideration violates any
applicable law or regulation or entitle Parent to recover the same under
Section 16(b) of the Exchange Act, and any payment tendered to Parent by a
Participant in connection therewith shall be promptly refunded to the relevant
Participant, holder or beneficiary. Without limiting the generality of the
foregoing, the granting and settlement of Equity Units hereunder shall not be
construed as an offer to sell securities of Parent, and no such offer shall be
outstanding, unless and until the Committee in its sole discretion has
determined that any such offer, if made, would be in compliance with all
applicable requirements of the U.S. federal securities laws and any other laws
to which such offer, if made, would be subject.
(l) No Trust or Fund Created. Neither the Plan nor the granting
and settlement of any Equity Unit shall create or be construed to create a
trust or separate fund of any kind or a fiduciary relationship between Parent
or any Subsidiary and a Participant or any other Person. To the extent that any
Person acquires a right to receive payments from Parent or any Subsidiary
hereunder, such right shall be no greater than the right of any unsecured
general creditor of Parent or any Subsidiary.
(m) No Fractional Preferred Shares. No fractional Preferred Shares
shall be issued or delivered pursuant to the Plan, and the Committee shall
determine whether cash or other securities or other property shall be paid or
transferred in lieu of any fractional Preferred Shares or whether such
fractional Preferred Shares or any rights thereto shall be canceled,
terminated, or otherwise eliminated.
(n) Headings. Headings are given to the Sections and subsections of
the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
Section 9. Term of the Plan.
(a) Effective Date. The Plan shall be effective as of August 17,
1998, subject to approval by the shareholders of Parent. Equity Units may be
granted hereunder prior to such shareholder approval subject in all cases,
however, to such approval.
(b) Expiration Date. The Plan shall terminate and be of no further
force or effect as of the date all payments due under the Plan have been made.
Exhibit A
FORM OF AWARD AGREEMENT
AWARD AGREEMENT
Pursuant To The
INSILCO HOLDING CO.
AND
INSILCO CORPORATION
EQUITY UNIT PLAN
THIS AGREEMENT is made as of the 17th day of August, 1998,
between Insilco Holding Co., a Delaware corporation (the "Parent"), Insilco
Corporation, a Delaware corporation (the "Insilco"), and Participant~ (the
"Participant").
WHEREAS, Parent has adopted the Insilco Holding Co. and Insilco
Co. Equity Unit Plan (the "Plan"), which Plan is incorporated herein by
reference and made a part of this Equity Unit Agreement (the "Agreement").
Capitalized terms not otherwise defined herein shall have the same meanings
as in the Plan.
WHEREAS, Parent and Insilco have determined that it would be in
the best interests of Parent and its stockholders and Insilco to grant the
Equity Units provided for herein to the Participant pursuant to the Plan and
the terms set forth herein as an inducement to the Participant to remain in the
employment of Insilco and as an increased incentive to contribute to the future
success and prosperity of Parent and Insilco.
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Grant of Equity Units. The Participant shall be credited with
Equity Units~ Equity Units in accordance with Exhibit C of the Plan.
2. Vesting of Equity Units. All Equity Units granted hereunder
shall be 100% vested.
3. Settlement of Equity Units.
(a) Significant Event. Within 30 days after the occurrence of a
Significant Event, each Equity Unit held by the Participant shall be canceled
in exchange for Parent's payment to the Participant of an amount equal to the
Fair Market Value of a Common Share on the date of such Significant Event,
less any applicable income tax and FICA withholdings.
(b) Termination of Employment Other than for Cause. If the
Participant's employment with Parent and its Subsidiaries is terminated by
reason of the Participant's resignation, retirement, disability or death or a
termination by Parent for any reason other than Cause, each Equity Unit held
by the Participant shall be canceled in exchange for Parent's payment to the
Participant (or, in the case of the Participant's death, to the Participant's
estate) within 30 days after such termination, of the Fair Market Value of a
Common Share as of the Termination Date, less applicable income tax and FICA
withholding.
(c) Termination of Employment For Cause. If the Participant's
employment with Parent and its Subsidiaries is terminated by Parent for Cause,
each Equity Unit held by the Participant shall be canceled in exchange for
payment by Parent to the Participant within 30 days after such termination of
the lesser of (x) the Fair Market Value of a Common Share as of the
Termination Date, or (y) $45.00, less applicable income tax and FICA
withholding.
(d) Form of Payment. With respect to payments under Sections 3(a),
3(b) or 3(c), the Committee shall determine in its sole discretion whether an
Equity Unit shall be settled in cash, Preferred Shares or a combination of cash
and Preferred Shares; provided that the Participant shall be entitled to elect
that at least 50% of the value of the Equity Units must be settled in cash;
provided further, however, that if Parent is effectively prohibited from
settling the Equity Units in cash under the terms of any agreement to which
Parent is a party, or any of the indentures governing any debt securities
issued by Parent or any of its Subsidiaries, settlement may be effected
through a promissory note having such commercially reasonable terms as may be
determined by Parent in its reasonable discretion and an interest rate equal
to the interest rate that would be payable by Parent on a loan taken by Parent
as of the date of the issuance of such note under Parent's then current bank
revolving credit facility or, if no such facility is then in place, an
interest rate equal to the rate payable by Parent on incremental borrowing
from a commercial bank at the time of issuance of such note, and provided
further that in any event such note shall become due at such time as the
prohibitions described above shall lapse.
(e) Prior Taxability. If the Internal Revenue Service finally
determines that the Participant must recognize taxable income in connection
with the Participant's cancellation and termination of unexercised option
rights under the Insilco Corporation 1993 Long-Term Incentive Stock Option Plan
and the related grant of Equity Units under the Plan, the Participant shall be
entitled to elect to cancel a sufficient number of Equity Units to satisfy the
related tax liability. The Equity Units shall be cancelled in exchange for a
cash payment by Insilco to the Participant within 30 days after the
Participant's written notice of the final determination of the Internal Revenue
Service is received by the Committee in an amount equal to the Fair Market
Value of a Common Share on the date of such notice.
4. Withholding. Any amount payable to the Participant pursuant to
this Agreement shall be subject to withholding for income and other applicable
taxes. If an amount required to be withheld is in excess of any amount
payable to the Participant or is required in the absence of any payment to the
Participant, the Participant shall, upon demand of Parent or any Subsidiary pay
to it or its Subsidiary such amount as may be demanded for the purpose of
satisfying its liability to withhold for such taxes. Parent or any Subsidiary
shall have the right and is hereby authorized to withhold from any payment due
or transfer made under any Equity Units or from any compensation or other
amount owing to the Participant the amount (in cash, Common Shares, other
securities, or other property) of any applicable withholding taxes in respect
of an Equity Unit, and to take such other action as may be necessary in the
opinion of Parent to satisfy all obligations for the payment of such taxes.
Nothing contained in this Agreement or the Plan or in any communication by
Parent, its Subsidiaries or any of their respective representatives has been or
shall be interpreted by the Participant or any other party as a representation,
guarantee or other undertaking on the part of Parent as to the treatment of the
Equity Units under the Code or under any tax laws or regulations of any State,
municipality or other jurisdiction, and the Participant shall be solely liable
for all taxes and withholding payable in respect of the Equity Units granted
hereunder.
5. Adjustments. In the event that the Committee determines that
any dividend or other distribution (whether in the form of cash, Common Shares,
other securities or other property), recapitalization, stock split, reverse
stock split, reorganization, reclassification, merger, consolidation,
split-up, spin-off, combination, repurchase, or exchange of Common Shares or
other securities of Parent, issuance of warrants or other rights to purchase
Common Shares or other securities of Parent, or other similar corporate
transaction or event affects the Common Shares such that an adjustment is
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available hereunder, then the Committee
shall, in good faith and in such manner as it may deem equitable, adjust the
number of (i) Equity Units granted hereunder and (ii) Preferred Shares
available for settlement of such Equity Units under the Plan.
6. Nontransferability. No Equity Unit shall be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered by
the Participant, except by will or the laws of descent and distribution, and
any attempt to do so shall be void.
7. No Stockholder Rights. This Agreement shall not be construed
as giving the Participant any rights as a stockholder of any Preferred Shares,
and the Participant shall not have any rights as a stockholder with respect to
any Preferred Shares that may be issued in settlement of any Equity Unit
unless and until the Committee determines, in its sole discretion, to settle
any such Equity Unit in Preferred Shares and such Preferred Shares are issued
in the Participant's name.
8. No Right to Employment. The grant of Equity Units shall not be
construed as giving the Participant the right to be retained in the employ or
service of Parent or any Subsidiary, nor shall this Agreement or the Plan
interfere in any way with the right of Parent or any Subsidiary to terminate
the Participant's employment at any time, subject to any obligations under any
Employment Agreement covering the Participant.
9. Participant Bound by the Plan. The Participant hereby
acknowledges receipt of a copy of the Plan and agrees to be bound by all of
the terms and provisions thereof. This Agreement shall be construed in
accordance and consistent with, and subject to, the terms of the Plan (the
provisions of which are incorporated herein by reference).
10. Notices. All notices hereunder to the party shall be
delivered or mailed to the following addresses:
If to Parent:
Insilco Holding Co.
c/o DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, New York 10172
Attention: William Dawson
Fax: (212) 892-7272
and
Insilco Holding Co.
425 Metro Place North,
5th Floor
Dublin, Ohio 43017
Attention: General Counsel
Fax: (614) 791-3195
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: John W. Buttrick
Fax: (212) 450-4800
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice.
If to the Participant, to the last known address of the
Participant in the records of Parent and with a copy to:
Baker & Hostetler LLP
65 East State Street, Suite 2100
Columbus, Ohio 43215-4260
Attention: Richard J. Helmreich
Fax: (614) 462-2616.
Such addresses for the service of notices may be changed at any
time provided notice of such change is furnished in advance to the other party.
11. Modification of Agreement. This Agreement may be modified,
amended, suspended or terminated, and any terms or conditions may be waived,
but only by a written instrument executed by the parties hereto.
12. Severability. Should any provision of this Agreement be held
by a court of competent jurisdiction to be unenforceable or invalid for any
reason, the remaining provisions of this Agreement shall not be affected by
such holding and shall continue in full force in accordance with their terms.
13. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Delaware without giving effect to the conflicts of laws principles thereof.
14. Successors in Interest. This Agreement shall inure to the
benefit of and be binding upon any successor to Parent. This Agreement shall
inure to the benefit of the Participant's legal representatives. All
obligations imposed upon the Participant and all rights granted to Parent
under this Agreement shall be final, binding and conclusive upon the
Participant's heirs, executors, administrators and successors.
15. Resolution of Disputes. Any dispute or disagreement which may
arise under, or as a result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be resolved by
determination of the Committee. Any determination made hereunder shall be
final, binding and conclusive on the Participant and Company for all
purposes.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
INSILCO HOLDING CO.
By:
------------------------------
Name:
Title:
INSILCO CORPORATION
By:
------------------------------
Name:
Title:
Participant:
--------------------------------
Name: Participant Signature
Exhibit B
DESCRIPTION OF
PREFERRED SHARES
OF PARENT
(1) Par Value. The "Par Value" of each Preferred Share shall be
equal to the Equity Unit Settlement Amount of the Equity Unit in respect of
which such Preferred Share is issued.
(2) Rank. The Preferred Shares 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 Parent, including Parent's Common
Shares and each other class of capital stock of Parent the terms of which
provide that such class shall rank junior to the Preferred Shares or the terms
of which do not specify any rank relative to the Preferred Shares, other than
the shares (the "Senior Preferred Shares") described in that certain
Certificate of Designations, Preferences and Rights of 15% Senior Exchangeable
Preferred Stock Due 2010 of Parent dated August 17, 1998 (the "Senior Preferred
Certificate of Designation"), which shall rank prior to and senior to the
Preferred Shares. All equity securities of Parent to which the Preferred
Shares rank prior (whether with respect to dividends or upon liquidation,
dissolution, winding up or otherwise), including the Common Shares, are
collectively referred to herein as the "Junior Securities." All equity
securities of Parent with which the Preferred Shares 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.
(3) Dividends. (a)(i) The holders of shares of Preferred Shares
shall be entitled to receive, when, as and if declared by the Board, out of
funds legally available for the payment of dividends, dividends (subject to
paragraphs 3(a)(ii) and (iii) below) 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 Preferred Shares on and as of the most recent Dividend Payment
Date (as defined below). In the event Parent is unable or shall fail to
discharge its obligation to pay any amount owing in dividends on any Preferred
Share, the Dividend Rate shall increase by .25 percent per quarter (each, a
"Default Dividend") for each quarter or portion thereof that such dividends
remain in arrears, provided that the aggregate increase shall not exceed 5%.
Such dividends shall be payable in the manner set forth below in paragraphs
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 Parent legally available for the
payment of such dividends.
(ii) Prior to the fifth anniversary date of the issuance of
each Preferred Share (the "Cash Pay Date"), dividends shall not be
payable in cash to the holder of such Preferred Share but shall,
subject to paragraph 3(b) hereof, accrete to the Liquidation Value
in accordance with paragraph 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
Preferred Shares, in equal quarterly amounts (to which the Default
Dividend, if any, shall be added), to the holders of record of
shares of the Preferred Shares, as they appear on the stock
records of Parent 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. 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.
(b) Holders of shares of Preferred Shares 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 Preferred Shares. 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
Preferred Shares that may be in arrears.
(c) So long as any shares of the Preferred Shares 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 Preferred Shares 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 Preferred
Shares 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 Preferred Shares and accumulated and unpaid on such Parity
Securities.
(d) So long as any shares of the Preferred Shares 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 Shares made for
purposes of an employee incentive or benefit plan of Parent 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 Parent, 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 Preferred
Shares 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 Preferred Shares 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 Preferred Shares 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 Parent, whether voluntary or involuntary, before
any payment or distribution of the assets of Parent (whether capital or
surplus) shall be made to or set apart for the holders of Junior Securities,
the holders of the shares of Preferred Shares 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 Preferred Shares, the sum of (1)
the Par Value of such Preferred 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 Parent or the redemption of any shares of Preferred Shares
pursuant to paragraph 6 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. All accretions
to Liquidation Value will be calculated using compounding on a quarterly
basis. Except as provided in the preceding sentences, holders of Preferred
Shares shall not be entitled to any distribution in the event of liquidation,
dissolution or winding up of the affairs of Parent. If, upon any liquidation,
dissolution or winding up of Parent, the assets of Parent, or proceeds
thereof, distributable among the holders of the shares of Preferred Shares
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 Preferred Shares
and any such other Parity Securities ratably in accordance with the respective
amounts that would be payable on such shares of Preferred Shares 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 Parent with one or
more corporations, or (ii) a sale or transfer of all or substantially all of
Parent's assets, shall not be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary, of Parent.
(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 Preferred
Shares, 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 Preferred Shares shall not be
entitled to share therein.
(5) Perpetual Term. Unless redeemed or exchanged as provided below
in paragraphs (6), (7) and (8), the Preferred Shares shall have a perpetual
term.
(6) Redemption. (a) Redemption At the Option of Parent. To the
extent Parent shall have funds legally available for such payment, Parent may,
at its option, redeem Preferred Shares, at any time in whole but not in part,
at the applicable Liquidation Value of each such Preferred Share.
(b) Redemption In the Event of a Change of Control. In the event
of a Change of Control, Parent shall, to the extent it shall have funds legally
available for such payment, offer to redeem all of the Preferred Shares then
outstanding, and shall redeem the Preferred Shares 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.
"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 Exchange Act, 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 Parent, 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 Parent than that
beneficially owned by the Initial Investors; or (b) a sale or transfer of all
or substantially all of the assets of Parent 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
(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 Parent, 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.
(c) Status of Redeemed Shares. Preferred Shares 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 Preferred Shares shall be reissued or sold as Preferred Shares.
(d) Failure to Redeem. If Parent is unable or shall fail to
discharge its obligation to redeem all outstanding Preferred Shares pursuant
to paragraph (6)(b) (a "Mandatory Redemption Obligation"), such Mandatory
Redemption Obligation shall be discharged as soon as Parent is able to
discharge such Mandatory Redemption Obligation. If and so long as any Mandatory
Redemption Obligation with respect to the Preferred Shares shall not be fully
discharged, Parent 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 Preferred Shares) or (ii)
in accordance with paragraph 3(d), 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.
(e) Failure to Pay Dividends. Notwithstanding the foregoing
provisions of this paragraph (6), unless full cumulative cash dividends
(whether or not declared) on all outstanding Preferred Shares 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 Preferred Shares shall be redeemed, and no sum shall be set aside
for such redemption, unless Preferred Shares are redeemed pro rata.
(7) Procedure for Redemption. (a) In the event Parent shall redeem
Preferred Shares pursuant to paragraph 6(a), 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 Parent; 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 Preferred Share to be redeemed except as to the holder to
whom Parent 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 Preferred Shares 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 paragraph 6(a)
hereof, notice having been mailed as provided in paragraph 7(a) hereof, from
and after the redemption date (unless default shall be made by Parent in
providing money for the payment of the redemption price of the shares called
for redemption), dividends on the Preferred Shares so called for redemption
shall cease to accrue, and all rights of the holders thereof as stockholders
of Parent (except the right to receive from Parent 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 shall so require and the notice shall so state), such share shall be
redeemed by Parent 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 paragraph 6(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 Parent; 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 Preferred Share to be redeemed
except as to the holder to whom Parent 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 Parent to
redeem all or any of the Preferred Shares 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 Parent 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 Parent indicating the number of
Preferred Shares such holder shall elect to cause Parent to redeem, if any.
(d) In the case of a redemption pursuant to paragraph 6(b) hereof,
notice having been mailed as provided in paragraph 7(c) hereof, from and after
the redemption date (unless default shall be made by Parent in providing money
for the payment of the redemption price of the shares called for redemption),
dividends on such Preferred Shares as the holder elects to cause Parent to
redeem shall cease to accrue, and all rights of the holders thereof as
stockholders of Parent (except the right to receive from Parent 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 shall so require and the notice shall so state), such
share shall be redeemed by Parent 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.
(8) Exchange. (a) Subject to the provisions of this paragraph (8)
Parent 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 (and fractional) Preferred Shares, for
Exchange Debentures, provided that (i) on or prior to the date of exchange
Parent shall have paid to or declared and set aside for payment to the holders
of outstanding Preferred Shares all accrued and unpaid cash dividends on
Preferred Shares 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 Preferred Shares 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
Preferred Share, adjusted as hereinafter provided, shall be determined in
accordance with the Exchange Ratio (as defined below).
Cash dividends on any Preferred Shares 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 Parent 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, Parent shall appoint a
trustee to serve in the capacity contemplated by an indenture between Parent
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 Liquidation Value of Preferred Shares held by a holder on the applicable
exchange date.
"Exchange Debentures" shall have the meaning set forth in the
Senior Preferred Shares Certificate of Designation.
(b) Procedure for Exchange. (i) In the event Parent shall exchange
Preferred Shares, 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 Parent;
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
Preferred Shares to be exchanged except as to the holder to whom Parent 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 Preferred Shares 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, Parent
shall execute and deliver with a bank or trust company selected by
Parent an indenture containing customary terms and conditions.
Parent 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.
Parent will not give notice of its intention to exchange
under paragraph 8(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 Parent) to the effect that (i) the
indenture has been duly authorized, executed and delivered by
Parent, 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 Parent 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 Preferred Shares, will constitute valid and
binding obligations of Parent 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 Parent 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 Parent 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 or that the
exchange of the Exchange Debentures for the Preferred Shares is
exempt from registration under the Securities Act, and (v) Parent
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 Parent in
issuing Exchange Debentures in exchange for the shares called for
exchange), dividends on the Preferred Shares so called for
exchange shall cease to accrue, and all rights of the holders
thereof as stockholders of Parent (except the right to receive
from Parent 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 shall so require and the
notice shall so state), such share shall be exchanged by Parent
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 Parent
shall be obligated to deliver upon exchange of the Preferred
Shares, Parent shall comply with all applicable federal and state
laws and regulations which require action to be taken by Parent.
(c) Parent 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 Preferred Shares pursuant
hereto; provided that Parent 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 Preferred
Shares 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 Parent the
amount of any such tax or has established, to the satisfaction of Parent, that
such tax has been paid.
(9) Voting Rights. (a) The holders of record of Preferred Shares
shall not be entitled to any voting rights except as hereinafter provided in
this paragraph (9), as otherwise provided by law or as provided in the
Investors' Agreement.
(b) Without the written consent of a majority of the outstanding
Preferred Shares or the vote of holders of a majority of the outstanding
Preferred Shares at a meeting of the holders of Preferred Shares called for
such purpose, Parent 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 Preferred Shares; provided that any
such amendment that decreases the dividend payable on or the Liquidation Value
of the Preferred Shares shall require the affirmative vote of holders of each
Preferred Share at a meeting of holders of Preferred Shares called for such
purpose or written consent of the holder of each Preferred Share; or (ii)
create, authorize or issue any class of stock (other than the Senior Preferred
Shares) ranking prior to, or on a parity with, the Preferred Shares 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 Parent 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 Parent 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 Preferred Shares in accordance with the terms hereof or of the
Investors' Agreement.
(c) In exercising the voting rights set forth in this paragraph
(9), each Preferred Share shall have one vote per share. Except as otherwise
required by applicable law or as set forth herein, the Preferred Shares 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.
(10) Reports. So long as any of the Preferred Shares are
outstanding, Parent will furnish the holders thereof with the quarterly and
annual financial reports that Parent is required to file with the Securities
and Exchange Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act or, in the event Parent is not required to file such reports,
reports containing the same information as would be required in such reports.
(11) General Provisions. (a) The term "outstanding", when used in
this Exhibit B with reference to shares of stock, shall mean issued shares,
excluding shares held by Parent or a subsidiary.
(b) 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.
(c) Each holder of Preferred Shares, by acceptance thereof,
acknowledges and agrees that payments of dividends, interest, premium and
principal on, and exchange, redemption and repurchase of, such securities by
Parent are subject to restrictions on Parent contained in certain credit and
financing agreements.
Exhibit C
EQUITY UNITS
Name Number of Units
- ---- ---------------
Robert L. Smialek 22,222
David Aronowitz 4,450
Steven Crea 2,022
Michael Elia 3,777
Leslie G. Jacobs 4,444
David A. Kauer 14,000
Kenneth H. Koch 6,666
Steven Smith 4,266
Frederick Stewart 2,225
Betty Thomas 415
John Genuse 375
Daniel Seaman 4,000
Thomas Wells 1,213
Matthew Connell 990
Dennis French 2,376
Robert Alonzo 1,305
Ronald Cook 583
Harold Todd 932
Craig Van Pelt 2,055
George Olsen 1,266
Scott Latham 2,210
George Jadosh 2,222
Philip Pitman 542
Philip Rejeski 608
Brian Smith 1,330
Paul Dalbo 1,000
Pat Walsh 700
Exhibit 15
Insilco Corporation
Columbus, Ohio
Ladies and Gentlemen:
Registration Statement (Form S-8)
With respect to the registration statement (Form S-8) for the Insilco Holding
Co. and Insilco Corporation Equity Unit Plan, we acknowledge our awareness of
the use therein of our reports dated April 22, 1998 and July 22, 1998 related
to our reviews of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG Peat Marwick LLP
Columbus, Ohio
August 14, 1998
EXHIBIT 23(a)
The Board of Directors
Insilco Corporation
Consent of Independent Auditors
We consent to the use of our audit report dated January 30, 1998, except as
to Note 21, which is as of June 8, 1998 and Note 2, which is as of July 7,
1998 on the consolidated financial statements of Insilco Corporation as of
December 31, 1997 and 1996 and for each of the years in the three-year
period then ended incorporated herein by reference from the Insilco
Corporation Form 10-K for the year ended December 31, 1997.
KPMG PEAT MARWICK LLP
Columbus, Ohio
August 14, 1998
