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
or organization)
50 East Swedesford Road
Frazer, Pennsylvania 19355
(610) 296-6000
(Address of principal
executive offices)
Insilco Holding Co. Direct Investment Program
Insilco Holding Co. Stock Option Plan
(Full title of the Plans)
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
==============================================================================
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
- ------------------------------------------------------------------------------
Common Stock (par value
$.001 per share).... 222,916 $44.1028 $9,831,220 $2,901
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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(c) and Rule 457(h) of the General Rules and
Regulations under the Securities Act of 1933 (the "1933 Act") in respect of
200,000 shares issuable under the Insilco Holding Co. Stock Option Plan
solely for the purpose of computing the registration fee, based on $44.00
the average of the high and low sale prices of securities on the NASDAQ
National Market System on August 13, 1998 which were converted into the
securities being registered hereby, and pursuant to Rule 457(h) under the
1933 Act in respect of 22,916 shares issuable at 45.00 per share under the
Insilco Holding Co. Direct Investment Program.
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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 Prospectuses for the Insilco Holding Co.
Direct Investment Program (the "Program") and the Insilco Holding Co. Stock
Option Plan (the "Plan") together with the copy of the relevant plan attached
to relevant 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 relevant 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 222,916 shares of the Registrant's
Common Stock, par value $.001 per share ("Common Stock"), for issuance pursuant
to the Program and 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. (the "Company") 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;
(3) The description of the Company's Common Stock contained in
the Company's Exchange Act Registration Statement filed under the Exchange Act,
including any amendment thereto or report filed for the purpose of updating
such description; and
(4) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to 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
Not applicable, see Item 3(3) above.
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 officers' and
directors' liability insurance 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. Direct Investment Program
4(d) Form of Insilco Holding Co. Stock Option Plan
5 Opinion of Davis Polk & Wardwell
15 Letter re Unaudited Interim Financial Information
23(a) Consent of KPMG Peat Marwick, LLP
23(b) Consent of Davis Polk & Wardwell (included in Exhibit 5)
24 Power of Attorney (set forth on the signature pages hereof)
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 CORPORATION
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
/s/ DAVID A. KAUER Vice President and Chief August 17, 1998
- ------------------------ Financial Officer (Principal
David A. Kauer Financial and Accounting
Officer)
/s/ WILLIAM F. DAWSON Director August 17, 1998
- ------------------------
William F. Dawson
/s/ THOMPSON 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 (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. Direct Investment
Program................................................ 8
4(d) Form of Insilco Holding Co. Stock Option Plan.......... 22
5 Opinion of Davis Polk & Wardwell....................... 29
15 Letter re Unaudited Interim Financial Information...... 30
23(a) Consent of KPMG Peat Marwick LLP....................... 30
23(b) Consent of Davis Polk & Wardwell (included in Exhibit
5)..................................................... 29
24 Power of Attorney (set forth on the signature pages
hereof) ............................................... 6
- ---------------
(1) Incorporated by reference
EXHIBIT 4(c)
INSILCO HOLDING CO.
Direct Investment Program
Section 1. Purpose. The purpose of the Insilco Holding Co.
Direct Investment Program is to promote the interests of Insilco Holding Co.
(the "Company") and its stockholders by retaining exceptional executive
personnel and other key employees of the Company and its Subsidiaries and
motivating such individuals by enabling them to participate in the long-term
growth and financial success of the Company.
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 the Company shall be deemed
an Affiliate of any other stockholder of the Company solely by reason of any
investment in the Company. 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.
"Board" shall mean the Board of Directors of the Company.
"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 the Company or any other felonious conduct on
the part of the Participant that is materially detrimental to the best
interests of the Company;
(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 the Company or any of its
Affiliates as determined in the reasonable discretion of the Company,
including a Participant's breach of the provisions of any non-competition,
non-solicitation or confidentiality covenant in favor of the Company 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 the Company.
"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.
"EBITDA" means the consolidated operating income of the Company,
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 the Company 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.
"Fair Market Value" means, with respect to a Share or other
security of the Company, as of the date of determination, (i) if on the date of
determination such Shares or securities are Publicly Traded, the average of the
reported high and low sale prices of a Share or such other security on such
exchange or market as is the principal trading market for such 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 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 the Company and the accreted value of all outstanding
preferred stock of the Company, plus (C) a multiple of 9.0 times the last 12
months' equity in net income of subsidiaries of the Company, divided by (y)
the aggregate number of shares of all classes of common stock of the Company
outstanding, determined on a fully diluted basis, as of the close of the
calendar quarter immediately preceding the date of determination.
"Investors' Agreement" means the Investors' Agreement dated as
of August 14, 1998 among (i) the Company 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").
"Participant" means any Employee selected by the Committee to
become an investor under the Plan (and to the extent applicable, any heirs,
legatees or legal representatives thereof).
"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 shares which CVC would otherwise acquire
and a Co-Investment Scheme which holds shares for a body corporate or other
vehicle may Transfer their shares to another body corporate or another
vehicle which holds or is to hold shares for the Co-Investment Scheme or
the officers, employees or partners entitled to the 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. Direct Investment Program.
"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 the Company or Insilco.
"Public Offering" means an underwritten public offering of
Registrable Securities of the Company occuring 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).
"Purchase Agreement" shall mean a written agreement executed by
an Employee evidencing the purchase of Shares under the Plan. Unless otherwise
provided by the Committee, the Purchase Agreement to be used for the purchase
of Shares by Employees under the Plan shall be substantially in the form
attached as Exhibit A hereto.
"Purchase Price" shall have the meaning set forth in Section
6(b).
"Registrable Securities" means at any time any Shares or
Warrants and any securities issued or issuable in respect of such 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 Shares or Warrants has been
declared effective by the SEC and such Shares or Warrants have been disposed of
pursuant to such effective registration statement, (ii) such 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 Shares or Warrants are otherwise transferred, the Company has
delivered a new certificate or other evidence of ownership for such Shares or
Warrants not bearing the legend required pursuant to the Investors' Agreement
and such 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.
"Shares" means shares of common stock, $0.001 par value, of the
Company or such other securities as may be designated by the Committee from
time to time
"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 the Company representing more than 50% of the
combined voting power of the Company'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 the Company representing, in the
aggregate, at least 45% of the combined voting power of the Company'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 the Company'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 the Company of a plan or
agreement providing (A) for a merger or consolidation of the Company other
than with a wholly-owned subsidiary and other than a merger or
consolidation that would result in the voting securities of the Company
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 the Company or such surviving entity outstanding immediately
after such merger or consolidation, or (B) for a plan of complete
liquidation of the Company. 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 the Company or any of its Subsidiaries of
more than 50%, in value, all of the consolidated assets of the Company and
its Subsidiaries to an entity which is not an Affiliate of the Company
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 the Company) 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" shall mean, 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 the Company and its
Subsidiaries in exchange for compensation as an employee.
"Warrants" means the warrants issued by the Company to
Stockholders for the purchase of an aggregate of 110,453 Shares (subject to
adjustment as provided for herein).
Section 3. Administration.
(a) Authority of Committee. The Plan shall be administered by
the Committee or by the Board as a whole, if no Committee has been
constituted. All references to the powers and responsibilities of the
Committee set forth in this Plan shall be deemed to be references to the Board
if no Committee has been constituted. Subject to the terms of the Plan,
applicable law and contractual restrictions affecting the Company, 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 Shares to be covered by
Purchase Agreements; (iii) determine the terms and conditions of any Purchase
Agreement; (iv) determine whether, to what extent, and under what
circumstances Purchase Agreements may be amended or terminated and Shares
acquired thereunder may be reacquired or transferred; (v) interpret and
administer the Plan and any Purchase Agreement or other instrument or
agreement relating to, or made 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 Purchase Agreement
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 the
Company, any Subsidiary, any Participant, any holder or beneficiary of any
Purchase Agreement, any shareholder and any Employee.
Section 4. Shares Available for Purchase Agreement.
(a) Shares Available. The number of Shares which may be issued
under the Plan shall be 22,916.
(b) Sources of Shares. Any Shares delivered pursuant to a
Purchase Agreement may be either authorized and unissued shares, or previously
issued shares, held in the treasury of the Company.
Section 5. Eligibility. Subject to the provisions of the Plan
and contractual restrictions affecting the Company, the Committee shall have
sole and complete authority to determine the Employees eligible to purchase
Shares hereunder, the number of Shares available for purchase by each such
Participant, the Purchase Price therefor and the conditions and limitations
applicable to such purchase, the duration of the period during which, and the
conditions under which, such Shares may be repurchased by the Company, and the
other terms and conditions of the related Purchase Agreements. In selecting
Employees who may become Participants and determining the number of Shares
available for purchase by each such Participant, the Committee may take into
consideration any factors it may deem relevant, including its estimate of the
Employee's present and potential contributions to the success of the Company
and its Subsidiaries.
Section 6. Share Purchases.
(a) Purchase. Subject to (i) execution of a Purchase Agreement
by the Company and an Employee and (ii) compliance with such other conditions
as the Committee shall in its sole discretion require, such Employee shall be
entitled to purchase the number of Shares set forth opposite such Employee's
name on Exhibit B hereto. Additional Employees shall be entitled to purchase
Shares available under the Plan as determined by the Committee.
(b) Purchase Price. Unless otherwise determined by the
Committee, the price at which each Share under the Plan may be purchased (the
"Purchase Price") shall be $45.00.
(c) Payment. No Shares shall be delivered hereunder until
payment in full of the Purchase Price therefor is received by the Company.
Section 7. Restriction on Shares. Unless otherwise determined
by the Committee and explicitly provided under the original or amended terms
of the applicable Purchase Agreement, each Share issued under the Plan shall be
subject to the following restrictions:
(a) Restriction on Transfer. Except as provided in Section 7(b)
below, prior to the earlier of (i) a Significant Event or (ii) the date
occurring 60 days after a Participant's Termination Date, the Shares acquired
by the Participant under the Plan may not be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by the Participant.
(b) Call and Put Right. Except as otherwise provided herein,
upon the occurrence of a Significant Event or a termination of a Participant's
employment with the Company and its Subsidiaries for any reason or cause
(whether at the instance of the Participant or the Company or due to the
Participant's retirement, disability or death), then during the sixty-day
period following such Significant Event or the Participant's Termination Date,
as the case may be, (i) the Company or its designee shall have the option and
right, exercisable at the Company's sole discretion, to purchase from the
Participant (or in the event of the Participant's death, the Participant's
estate) all or a portion of the Shares acquired by the Participant under the
Plan, and the Participant (or the Participant's estate) shall have the
obligation to sell such Shares to the Company or its designee and (ii) the
Participant (or in the event of the Participant's death, the Participant's
estate) shall have the option and right, exercisable at the sole discretion of
the Participant (or the Participant's estate), to sell to the Company all or a
portion of the Shares acquired by such Participant under the Plan, and the
Company shall have the obligation to purchase such Shares from the Participant
(or the Participant's estate). In the event of the Participant's termination
of employment by reason of the Participant's death, the sixty-day period shall
be extended by thirty days (i.e., an aggregate period of ninety days) solely
for purposes of clause (ii) above. Notwithstanding the foregoing or anything
else to the contrary, if a Significant Event occurs on August 17, 2008 and as
of such date the Shares are Publicly Traded, the put and call rights described
above shall be null and void.
(c) Repurchase Price. The purchase price payable for each Share
purchased and sold pursuant to Section 7(b) shall be (i) in the event of a
Significant Event or a termination of the Participant's employment for any
reason or cause other than a termination by the Company or a Subsidiary for
Cause, the Fair Market Value of such Share as of the date of purchase, and
(ii) in the event of a termination of the Participant's employment by the
Company or a Subsidiary for Cause, the lesser of the Fair Market Value of such
Share as of the date of purchase or $45.00
(d) Repurchase Notice. A party electing to exercise its right
under Section 7(b) shall do so by delivering written notice (a "Purchase
Notice") to the other party to such effect within the period set forth in
Section 7(b). For purposes of this Section 7, the "date of purchase" shall
mean the third business day following the receipt of such Purchase Notice by
such other party. Payment of the purchase price may be made in cash or by
certified check; provided that if the terms of any agreement to which the
Company is a party, or any of the indentures governing any debt securities
issued by the Company or any of its Subsidiaries would prohibit the Company
from effecting such payment, payment may be effected through a promissory note
having such commercially reasonable terms as may be determined by the Company
in its reasonable discretion and an interest rate equal to the interest rate
that would be payable by the Company on a loan taken by the Company as of the
date of the issuance of such note under the Company'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 the Company on incremental
borrowing from a commercial bank at the time of issuance of such note,
provided further that in any event such note shall become due at such time as
the prohibitions described above shall lapse.
Section 8. Amendment and Termination.
(a) Amendments to and Termination of the Plan. Unless the Plan
shall theretofore have been terminated as hereinafter provided, the Plan shall
terminate on, and no Purchase Agreement shall be entered into thereunder
after, August 17, 2008. Subject to any contractual restrictions affecting the
Company, the Board may amend, alter, suspend, discontinue, or terminate the
Plan or any portion thereof at any time; 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.
(b) Amendments to Purchase Agreements. The Committee may waive
any conditions or rights under, amend any terms of, or alter, suspend,
discontinue, cancel or terminate, any Purchase Agreement, prospectively or
retroactively; provided that any such waiver, amendment, alteration,
suspension, discontinuance, cancellation or termination that would adversely
affect the rights of any Participant under any Purchase Agreement shall not to
that extent be effective without the consent of the affected Participant.
Section 9. General Provisions.
(a) No Rights to Participation. No Employee, Participant or
other Person shall have any claim to be granted the opportunity to purchase any
Shares hereunder, and there is no obligation for uniformity of treatment of
Employees or Participants. The terms and conditions of Purchase Agreements
need not be the same with respect to each recipient.
(b) Share Certificates. Certificates issued in respect of 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 the Company's transfer agent,
as may be deemed necessary or advisable by counsel to the Company in order
reflect the restrictions imposed under Section 7 and to comply with the
requirements of the Securities Act, any state securities laws or any other
applicable laws and the restrictions imposed under Section 7. All certificates
for Shares or other securities of the Company or any Affiliate issued under the
Plan pursuant to any Purchase Agreement shall be subject to such delivery
restrictions and stop transfer orders and other restrictions as the Committee
may deem advisable under the Plan, the applicable Purchase Agreement or the
rules, regulations and other requirements of the SEC or any stock exchange
upon which such Shares or other securities are then listed and any applicable
laws or rules or regulations.
(c) Execution of Purchase Agreement. No Shares shall be issued
hereunder unless and until a Purchase Agreement shall be executed by the
Company and the Participant.
(d) No Limit on Compensation Arrangements. Nothing contained in
the Plan shall prevent the Company or any Subsidiary from adopting or
continuing in effect compensation arrangements, which may, but need not,
provide for the grant of options, restricted stock, 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.
(e) No Rights to Employment. Nothing in this Plan or in any
Purchase Agreement shall confer on any individual any right to continue in the
employ of the Company or any Subsidiary of the Company or interfere in any way
with the right of the Company or any Subsidiary of the Company to terminate
his or her employment at any time, subject to any obligations under any
Employment Agreement covering the Participant.
(f) Governing Law. The validity, construction, and effect of
the Plan and any rules and regulations relating to the Plan and any Purchase
Agreement shall be determined in accordance with the laws of the State of
Delaware, without application of the conflict of laws principles thereof.
(g) Severability. If any provision of the Plan or any Purchase
Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable
in any jurisdiction or as to any Person or Purchase Agreement, or would
disqualify the Plan or any Purchase Agreement 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 Purchase Agreement, such provision shall be stricken as to
such jurisdiction, Person or Purchase Agreement and the remainder of the Plan
and any such Purchase Agreement shall remain in full force and effect.
(h) Other Laws. The Committee may refuse to issue or transfer
any Shares or other consideration under a Purchase Agreement if, acting in its
sole discretion, it determines that the issuance or transfer of such Shares or
such other consideration violates any applicable law or regulation or entitle
the Company to recover the same under Section 16(b) of the Exchange Act, and
any payment tendered to the Company by a Participant in connection therewith
shall be promptly refunded to the relevant Participant. Without limiting the
generality of the foregoing, no Purchase Agreement shall be construed as an
offer to sell securities of the Company, 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.
(i) No Trust or Fund Created. Neither the Plan nor any Purchase
Agreement shall create or be construed to create a trust or separate fund of
any kind or a fiduciary relationship between the Company or any Affiliate and
a Participant or any other Person. To the extent that any Person acquires a
right to receive payments from the Company or any Affiliate pursuant to a
Purchase Agreement, such right shall be no greater than the right of any
unsecured general creditor of the Company or any Affiliate.
(j) No Fractional Shares. No fractional Shares shall be issued
or delivered pursuant to the Plan or any Purchase Agreement, and the Committee
shall determine whether cash or other securities or other property shall be
paid or transferred in lieu of any fractional Shares or whether such
fractional Shares or any rights thereto shall be canceled, terminated, or
otherwise eliminated.
Section 10. Effective Date. The Plan shall be effective as of
August 17, 1998.
Exhibit A
FORM OF SHARE OF PURCHASE AGREEMENT
INSILCO HOLDING CO.
PURCHASE AGREEMENT
Pursuant To The
INSILCO HOLDING CO.
DIRECT INVESTMENT PROGRAM
Purchase Date: August 17, 1998
Name of Participant: Participant
Number of Shares: Coinvestment
Purchase Price Per Share: $ 45.00
Aggregate Purchase Price: $ Aggregate
Insilco Holding Co., a Delaware corporation (the "Company"),
hereby sells to the above-named Participant (the "Participant"), and
Participant hereby purchases from the Company, that number of Shares (the
"Shares") set forth above for the Aggregate Purchase Price set forth above,
pursuant to the terms of the Insilco Holding Co. Direct Investment Program
(the "Plan") and this Agreement.
Capitalized terms not otherwise defined herein shall have the
same meanings as in the Plan. The Shares shall be subject to the
restrictions, terms and conditions set forth in the Plan and the terms and
conditions set forth below:
1. Payment of Purchase Price. The Aggregate Purchase Price set
forth above for the Shares shall be payable by Participant to the Company upon
the execution hereof in cash. Payment in currency or by check, bank draft,
cashier's check, postal money order or wire transfer shall be considered
payment in cash provided any such instrument is honored upon presentation.
2. Participant Representations. The Participant represents and
warrants to the Company as follows:
(a) Investment Intent. The Participant is acquiring the Shares for
investment purposes only, solely for his/her own account, and not with a view
to, or for resale in connection with, any distribution thereof.
(b) Financial Risk. The Participant's financial situation is such
that the Participant can afford to bear the economic risk of holding the Shares
acquired hereunder for an indefinite period of time, the Participant has
adequate means for providing for his needs and contingencies and can afford to
suffer the complete loss of the investment in the Shares.
(c) Knowledge and Experience. The Participant's knowledge and
experience in financial and business matters are such that he/she is capable of
evaluating the merits and risks of the investment in the Shares, or the
Participant has been advised by a representative possessing such knowledge and
experience.
(d) Speculative Investment. The Participant understands that the
Shares acquired hereunder are a speculative investment which involves a high
degree of risk of loss of the entire investment therein.
(e) Careful Review. The Participant and his/her representatives,
including his/her professional, financial, tax and other advisors, have
carefully reviewed all documents available to them in connection with the
investment in the Shares, and the Participant understands and has taken
cognizance of all the risks related to such investment.
(f) Information Provided to Participant. The Participant and
his/her representatives have been given the opportunity to examine all
documents and to ask questions of, and to receive answers from, the Company
and its representatives concerning the terms and conditions of the acquisition
of the Shares and related matters and to obtain all additional information
which the Participant or his/her representatives deem necessary.
(g) Information Provided to the Company. All information which the
Participant has provided to the Company and its representatives concerning the
Participant and his/her financial position is true, complete and correct, and
the Participant agrees to promptly notify the Company if at any time this
ceases to be the case.
3. Transfer Restrictions and Company Repurchase Right. The
Shares shall be subject to the following restrictions, terms and conditions
regarding the sale and transfer of the Shares:
(a) Transfer Restriction. Except as provided in Section 3(b)
below, prior to the earlier of (i) a Significant Event or (ii) the date
occurring sixty days after the Participant's Termination Date, the Shares
acquired by the Participant hereunder may not be sold, transferred, assigned,
pledged, hypothecated, attached or otherwise alienated or encumbered by the
Participant, unless approved in writing by the Committee.
(b) Call and Put Rights. Except as otherwise provided below, if a
Significant Event occurs prior to August 17, 2008 or the Participant's
employment with the Company and its Subsidiaries terminates for any reason or
cause (whether at the instance of the Participant or the Company or due to the
Participant's retirement, disability or death), then during the sixty-day
period following such Significant Event or the Participant's Termination Date,
as the case may be, (i) the Company or its designee shall have the option and
right, exercisable at the Company's sole discretion, to purchase from the
Participant (or in the event of the Participant's death, the Participant's
estate) all or a portion of the Shares acquired by the Participant under the
Plan, and the Participant (or the Participant's estate) shall have the
obligation to sell such Shares to the Company or its designee and (ii) the
Participant (or in the event of the Participant's death, the Participant's
estate) shall have the option and right, exercisable at the sole discretion of
the Participant (or the Participant's estate), to sell to the Company all or a
portion of the Shares acquired by such Participant under the Plan, and the
Company shall have the obligation to purchase such Shares from the Participant
(or the Participant's estate). In the event of the Participant's termination
of employment by reason of the Participant's death, the sixty-day period shall
be extended by thirty days (i.e., an aggregate period of ninety days) solely
for purposes of clause (ii) above. Notwithstanding the foregoing or anything
else to the contrary, if a Significant Event occurs on August 17, 2008 and as
of such date the Shares are Publicly Traded, the put and call rights described
above shall be null and void.
(c) Repurchase Price. The purchase price payable for each Share
purchased and sold pursuant to Section 3(b) above shall be (i) in the event of
a Significant Event or a termination of the Participant's employment for any
reason or cause other than a termination by the Company or a Subsidiary for
Cause, the Fair Market Value of such Share as of the date of purchase, and
(ii) in the event of a termination of the Participant's employment by the
Company or a Subsidiary for Cause, the lesser of the Fair Market Value of such
Share as of the date of purchase or $45.00.
(d) Repurchase Notice. A party electing to exercise its right
under Section 3(b) above shall do so by delivering a written Purchase Notice
to the other party to such effect within the period set forth in Section 3(b)
above. For purposes of this Section 3, the "date of purchase" shall mean the
third business day following the receipt of such Purchase Notice by such other
party. Payment of the purchase price may be made in cash or by certified
check; provided that if the terms of any agreement to which the Company is a
party, or any of the indentures governing any debt securities issued by the
Company or any of its Subsidiaries would prohibit the Company from effecting
such payment, payment may be effected through a promissory note having such
commercially reasonable terms as may be determined by the Company in its
reasonable discretion and an interest rate equal to the interest rate that
would be payable by the Company on a loan taken by the Company as of the date
of the issuance of such note under the Company'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 the Company on incremental borrowing from a
commercial bank at the time of issuance of such note, provided further that in
any event such note shall become due at such time as the prohibitions
described above shall lapse.
4. Certificates. Certificates issued in respect of Shares shall
bear a legend stating that such Shares are subject to the transfer
restrictions contained in the Plan and this Agreement (the "Restrictive
Legend") and such other legends as the Company shall deem appropriate in light
of the restrictions applicable to such Shares and the applicable securities
laws. Such Certificates shall be registered in the name of the Participant,
but such Certificates and the related stock powers shall remain in the
physical custody of the Company or its designee until the restrictions imposed
under Section 3 above have lapsed. The Company may impose stop transfer
instructions with respect to the Shares in accordance with the restrictions
imposed under Section 3 above. At the time that the restrictions imposed
under Section 3 lapse in full, the Company shall revoke any stop transfer
instruction and shall remove the Restrictive Legend from the Share
Certificates and deliver such Certificates, together with the related stock
power, to the Participant within three business days of a receiving notice
after the Participant's request for such delivery.
5. Shareholder Rights. Notwithstanding the restrictions imposed
under Section 3 above, the Participant shall be the record owner of the Shares
and, accordingly, shall be entitled to all rights of a common stockholder of
the Company (subject to Section 3 above), including, without limitation, voting
rights and rights to cash and in-kind dividends and distributions with respect
to the Shares.
6. No Employment Rights. This Purchase Agreement does not confer
on the Participant any right to continue in the employ of the Company or any
Subsidiary or interfere in any way with the right of the Company or any
Subsidiary to terminate the Participant's employment at any time, subject to
any obligations under any Employment Agreement covering the Participant.
7. Interpretations. This Purchase Agreement and the terms and
conditions herein set forth are subject in all respects to the terms and
conditions of the Plan, which shall be controlling. All interpretations or
determinations of the Board and/or the Committee shall be binding and
conclusive upon the Participant and his legal representatives on any question
arising hereunder. The Participant acknowledges that any powers, rights or
responsibilities of the Board and/or the Committee set forth herein may be
delegated to and exercised by any subcommittee thereof as permitted under the
Plan.
8. Notices. All notices hereunder to the party shall be
delivered or mailed to the following addresses:
If to the Company:
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 the Company 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.
9. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement and the Plan supersedes all prior agreements and
understandings between the parties hereto with respect to the subject matter
hereof.
10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
application of the conflict of laws principles thereof.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Purchase
Agreement to be duly executed as of the date first above written.
INSILCO HOLDING CO.
By:___________________________
Name:
Title:
Participant:
______________________________
Name: Participant Signature
Exhibit B
SHARES ALLOTTED FOR PURCHASE
Number of
Name Shares
---- ---------
Robert L. Smialek 17,095
David Aronowitz 500
Kenneth H. Koch 55
Steven Smith 2,844
Frederick Stewart 1,100
Betty Thomas 222
Bruce Barron 1,000
Matthew Connell 100
EXHIBIT 4(d)
INSILCO HOLDING CO.
Stock Option Plan
Section 1. Purpose. The purposes of the Insilco Holding Co.
Stock Option Plan are to promote the interests of Insilco Holding Co. (the
"Company") and its stockholders by (i) attracting and retaining exceptional
executive personnel and other key employees of the Company and its
Subsidiaries; (ii) motivating such employees by means of performance-related
incentives to achieve longer-range performance goals; and (iii) enabling such
employees to participate in the long-term growth and financial success of the
Company.
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 the Company shall be deemed
an Affiliate of any other stockholder of the Company solely by reason of any
investment in the Company. 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.
"Award" means any Option.
"Award Agreement" means any written agreement, contract, or
other instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Award Program" means any program established by the Committee
for the granting of Awards hereunder and attached as an addendum to the Plan.
"Board" means the Board of Directors of the Company.
"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 the Company or any other felonious conduct on
the part of the Participant that is materially detrimental to the best
interests of the Company;
(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 the Company or any of its
Affiliates as determined in the reasonable discretion of the Company,
including a Participant's breach of the provisions of any non-competition,
non-solicitation or confidentiality covenant in favor of the Company 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 the Company.
"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.
"Company" means Insilco Holding Co., a Delaware corporation.
"Employee" means an employee of the Company 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.
"Fair Market Value" means, with respect to the Shares, as of any
given date or dates, the average reported closing price of a share of such
class of common stock on such exchange or market as is the principal trading
market for such class of common stock for the three trading days immediately
preceding such date or dates. If such class of common stock is not traded on
an exchange or principal trading market on such date, the fair market value of
a Share shall be determined by the Committee in good faith taking into account
as appropriate recent sales of the Shares, recent valuations of the Shares and
such other factors as the Committee shall in its discretion deem relevant or
appropriate.
"Option" means an option to purchase Shares from the Company
granted under the Plan, which at the discretion of the Committee may be an
option intended to qualify as an "incentive stock option" within the meaning of
Code Section 422or a nonqualified option.
"Participant" means any Employee selected by the Committee to
receive an Award under the Plan (and to the extent applicable, any heirs or
legal representatives thereof).
"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. Stock Option Plan.
"SEC" means the Securities and Exchange Commission or any
successor thereto.
"Shares" means shares of common stock, $0.001 par value, of the
Company or such other securities as may be designated by the Committee from
time to time.
"Subsidiary" shall mean, 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.
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 the Company, 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 type or types of Awards to be granted to a Participant; (iii) determine the
number of Shares to be covered by, or with respect to which payments, rights,
or other matters are to be calculated in connection with, Awards; (iv)
determine the terms and conditions of any Award and Award Agreement; (v)
determine whether, to what extent, and under what circumstances Awards may be
settled or exercised in cash, Shares, other securities, other Awards or other
property, or canceled, forfeited, or suspended and the method or methods by
which Awards may be settled, exercised, canceled, forfeited, or suspended,
subject to Section 9(b); (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other property,
and other amounts issued or payable with respect to an Award shall be deferred
either automatically or at the election of the holder thereof or of the
Committee, subject to Section 9(b); (vii) determine whether, to what extent,
and under what circumstances cash, Shares, other securities, other Awards,
other property, and other amounts issued or payable with respect to an Award
shall be subject to restrictions on transfer, assignment, pledge or other
disposition or alienation and the nature of such restrictions, subject to
Section 9(b); (viii) interpret and administer the Plan and any instrument or
agreement relating to, or Award made under, the Plan; (ix) 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 (x) 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 Award 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 the Company, any
Subsidiary, any Participant, any holder or beneficiary of any Award, any
shareholder and any Employee.
Section 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in Section
4(b) and 4(c), the number of Shares with respect to which Awards may be
granted under the Plan shall be 200,000. If, after the effective date of the
Plan, any Shares covered by an Award granted under the Plan or to which such
an Award relates are forfeited, or if such an Award is settled for cash or
otherwise terminates or is canceled without the delivery of Shares, then the
Shares covered by such Award, or to which such Award relates, or the number of
Shares otherwise counted against the aggregate number of Shares with respect
to which Awards may be granted, to the extent of any such settlement,
forfeiture, termination or cancellation, shall, in the calendar year in which
such settlement, forfeiture, termination or cancellation occurs, again become
Shares with respect to which Awards may be granted unless any dividends have
been paid thereon prior to such settlement, forfeiture, termination or
cancellation. In addition, Shares tendered in satisfaction or partial
satisfaction of the exercise price of any Award or any tax withholding
obligations will again become Shares with respect to which Awards may be
granted. Notwithstanding the foregoing and subject to adjustment as provided
in Section 4(b), no Employee of the Company may receive Options in any
calendar year that relate to more than 100,000 Shares.
(b) Adjustments. In the event that the Committee determines that
any dividend or other distribution (whether in the form of cash, 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 Shares or other securities
of the Company, issuance of warrants or other rights to purchase Shares or
other securities of the Company, or other similar corporate transaction or
event affects the Shares such that an adjustment 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 any or all of (i) the
number of Shares of the Company (or number and kind of other securities or
property) with respect to which Awards may thereafter be granted, (ii) the
number of Shares or other securities of the Company (or number and kind of
other securities or property) subject to outstanding Awards, and (iii) the
grant or exercise price with respect to any Award, or, if deemed appropriate,
make provision for a cash payment to the holder of an outstanding Award.
(c) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of authorized
and unissued Shares or of treasury Shares.
Section 5. Eligibility. Any Employee, including any officer or
employee-director of the Company or any Subsidiary, shall be eligible to be
designated a Participant.
Section 6. Stock Options.
(a) Grant. Subject to the provisions of the Plan and contractual
restrictions affecting the Company, the Committee shall have sole and complete
authority to determine the Employees to whom Options shall be granted, the
number of Shares to be covered by each Option, the exercise price therefor and
the conditions and limitations applicable to the exercise of the Option.
(b) Exercise Price. The Committee in its sole discretion shall
establish the exercise price at the time each Option is granted, subject to any
minimum amounts established by the Committee.
(c) Exercise. Each Option shall be exercisable at such times and
subject to such terms and conditions as the Committee may, in its sole
discretion, specify in the applicable Award Agreement or thereafter subject to
Section 9(b). The Committee may impose such conditions in the applicable Award
Agreement with respect to the exercise of Options, including without
limitation, any relating to the application of Federal or state securities
laws, as it may deem necessary or advisable.
(d) Payment. No Shares shall be delivered pursuant to any exercise
of an Option until payment in full of the exercise price, or adequate provision
therefor, is received by the Company. Such payment may be made: (i) in cash;
(ii) in Shares owned by the Participant for at least six months (the value of
such Shares shall be their Fair Market Value on the date of exercise); (iii)
by a combination of cash and Shares; or (iv) in such other manner as permitted
by the Committee at the time of grant or thereafter.
(e) Award Program. The terms and conditions applicable to
each Award may be determined separately for each such Award or established in
accordance with the terms of an Award Program adopted by the Committee and
attached as an addendum to the Plan.
Section 7. Vesting; Termination of Employment. Each Award
Agreement shall contain such terms as the Committee may in its sole discretion
determine concerning vesting, forfeiture, the Company's rights of repurchase
of Shares acquired upon exercise of an Option, and/or the effects of
termination or suspension of a Participant's employment upon the
exercisability of any Option granted thereunder.
Section 8. Change of Control. The Committee, in its sole
discretion, may provide in an Award Agreement for the accelerated vesting or
settlement of an Award in the event of a change in the ownership or control of
the Company or upon any other event with respect to which the Committee deems
it appropriate to provide for such accelerated vesting or settlement of an
Award. Any provision of this Plan or any Award Agreement to the contrary
notwithstanding, in the event of a change in the ownership or control of the
Company or an offer to Participants generally relating to the acquisition of
Shares, including through purchase, merger or otherwise, the Committee may
cause any Award granted hereunder to be canceled in consideration of a cash
payment or alternative Award made to the holder of such canceled Award equal
in value to the Fair Market Value of such canceled Award.
Section 9. Amendment and Termination.
(a) Amendments to the Plan. Subject to Section 9(b), the Board may
amend, alter, suspend, discontinue, or terminate the Plan or any portion
thereof at any time; 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,
including for these purposes any approval requirement which is a prerequisite
for exemptive relief from Section 16(b) of the Exchange Act, 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 Awards. Subject to the terms of the Plan and
applicable law, the Committee may waive any conditions or rights under, amend
any terms of, or alter, suspend, discontinue, cancel or terminate, any Award
theretofore granted, prospectively or retroactively; provided that any such
waiver, amendment, alteration, suspension, discontinuance, cancellation or
termination that would adversely affect the rights of a Participant or any
holder or beneficiary of any Award theretofore granted shall not to that extent
be effective without the consent of the affected Participant, holder or
beneficiary.
Section 10. General Provisions.
(a) Dividend Equivalents. In the sole and complete discretion of
the Committee, an Award may provide the Participant with dividends or dividend
equivalents, payable in cash, Shares, other securities or other property on a
current or deferred basis.
(b) Nontransferability. Except to the extent otherwise provided in
an Award Agreement, no Award 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.
(c) No Rights to Awards. No Employee, Participant or other Person
shall have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Employees, Participants, or holders or beneficiaries
of Awards. The terms and conditions of Awards need not be the same with
respect to each recipient.
(d) Share Certificates. Certificates issued in respect of Shares
shall, unless the Committee otherwise determines, be registered in the name of
the Participant. Such stock certificates shall carry such appropriate
legends, and such written instructions shall be given to the Company's
transfer agent, as may be deemed necessary or advisable by counsel to the
Company in order to comply with the requirements of the Securities Act of
1933, any state securities laws or any other applicable laws or other
restrictions as may be applicable to the Shares represented by such stock
certificate. Any stock certificate issued in respect of Shares that are
subject to transfer restrictions set forth in the Award Agreement under which
such Shares are issued, or otherwise agreed as between the Company and the
Participant, shall be deposited by such Participant, together with a stock
power endorsed in blank, with the Company, and such Shares shall be subject to
such stop transfer orders and other restrictions as the Committee may deem
advisable. When the Participant ceases to be bound by such transfer
restrictions, the Company shall deliver such certificates to the Participant
upon request.
(e) Withholding. A Participant may be required to pay to the
Company or any Subsidiary, and the Company or any Subsidiary shall have the
right and is hereby authorized to withhold from any Award, from any payment
due or transfer made under any Award or under the Plan or from any
compensation or other amount owing to a Participant the amount (in cash,
Shares, other securities, other Awards or other property) of any applicable
withholding taxes in respect of an Award, its exercise, or any payment or
transfer under an Award or under the Plan and to take such other action as may
be necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes. The Committee may provide for additional cash payments
to holders of Awards to defray or offset any tax arising from any such grant,
lapse, vesting, or exercise of any Award.
(f) Award Agreements. Each Award hereunder shall be evidenced by
an Award Agreement which shall be delivered to the Participant and shall
specify the terms and conditions of the Award and any rules applicable
thereto.
(g) No Limit on Other Compensation Arrangements. Nothing contained
in the Plan shall prevent the Company or any Subsidiary from adopting or
continuing in effect other compensation arrangements, which may, but need not,
provide for the grant of options, restricted stock, Shares and other types of
Awards provided for hereunder (subject to shareholder approval if such
approval is required), and such arrangements may be either generally
applicable or applicable only in specific cases.
(h) No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ or
service of the Company or any Subsidiary or interfere in any way with the
right of the Company or any Subsidiary to terminate his or her employment at
any time, subject to any obligations under any Employment Agreement covering
the Participant.
(i) Rights as a Stockholder. Subject to the provisions of the
applicable Award, no Participant or holder or beneficiary of any Award shall
have any rights as a stockholder with respect to any Shares to be issued under
the Plan until he or she has become the holder of such Shares.
(j) 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.
(k) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or any
Award 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, such
provision shall be stricken as to such jurisdiction, Person or Award and the
remainder of the Plan and any such Award shall remain in full force and
effect.
(l) Other Laws. The Committee may refuse to issue or transfer any
Shares or other consideration under an Award if, acting in its sole discretion,
it determines that the issuance or transfer of such Shares or such other
consideration violates any applicable law or regulation or entitle the Company
to recover the same under Section 16(b) of the Exchange Act, and any payment
tendered to the Company by a Participant in connection therewith shall be
promptly refunded to the relevant Participant, holder or beneficiary. Without
limiting the generality of the foregoing, no Award granted hereunder shall be
construed as an offer to sell securities of the Company, 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.
(m) No Trust or Fund Created. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Subsidiary and a Participant
or any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Subsidiary pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Subsidiary.
(n) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash or other securities or other property shall be paid or
transferred in lieu of any fractional Shares or whether such fractional Shares
or any rights thereto shall be canceled, terminated, or otherwise eliminated.
(o) Transfer Restrictions. Shares acquired pursuant to an Award
may not be sold, assigned, transferred, pledged or otherwise disposed of,
except as provided in the Plan, the applicable Award Agreement and any other
agreement executed by the Participant in connection with the grant, exercise or
settlement such Award.
(p) 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 11. Term of the Plan.
(a) Effective Date. The Plan shall be effective as of August 14,
1998.
(b) Expiration Date. The Board and the Committee's authority to
grant Awards under the Plan shall terminate on the tenth anniversary of the
Plan's effective date. Unless otherwise expressly provided in the Plan or in
an applicable Award Agreement, any Award granted hereunder may, and the
authority of the Board or the Committee to amend, alter, adjust, suspend,
discontinue, or terminate any such Award or to waive any conditions or rights
under any such Award shall, continue after the authority for grant of new
Awards hereunder has been exhausted.
EXHIBIT 5
August 17, 1998
Insilco Holding Co.
425 Metro Place North
Dublin, Ohio 43017
Ladies and Gentlemen:
We are acting as special counsel for Insilco Holding Co. (the
"Company") in connection with the filing of a Registration Statement (the
"Registration Statement") on Form S-8 under the Securities Act of 1933, as
amended, relating to 22,916 shares of common stock, par value $0.001 per share
(the "Common Stock"), deliverable in accordance with the Insilco Holding Co.
Direct Investment Program (the "Program") and 200,000 shares of Common Stock
deliverable in accordance with the Insilco Holding Co. Stock Option Plan (the
"Plan").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments relating to the
adoption of the Program and the Plan as we have deemed necessary or advisable
for the purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that the
Common Stock deliverable pursuant to the Program or the Plan, as the case may
be, when delivered in accordance with the Program or the Plan, as the case may
be, upon receipt by the Company of adequate consideration therefor, will be
duly authorized, validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
Davis Polk & Wardwell
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. Direct Investment Program and Stock Option 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
