==============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
INSILCO HOLDING CO.
(Name of Issuer)
Common Stock
$0.001 PAR VALUE
(Title of Class of Securities)
------------
45766110
(CUSIP Number)
Donaldson, Lufkin & Jenrette, Inc.
(Name of Persons Filing Statement)
John W. Buttrick
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Tel. No.: 212 450 4340
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
August 17, 1998
(Date of Event which Requires Filing of
this Statement)
------------
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this statement because of Rule 13d-1(b)(3) or
(4), check the following: [ ]
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SCHEDULE 13D
CUSIP No. 45766110 Page 1 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
601,929
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 2 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II-A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
23,972
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 3 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners - A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
1,898
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 4 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
9,733
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 5 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ EAB Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
2,703
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 6 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Offshore Partners II, C.V.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands Antilles
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
29,600
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 7 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
669,835
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 8 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
669,835
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 9 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
35,191
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 10 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
13,069
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 11 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Associates L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
48,260
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 12 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
48,260
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 13 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ First ESC, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
1,158
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 14 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ ESC II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
113,508
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 15 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ LBO Plans Management Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
117,369
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 16 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJMB Funding II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
106,869
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 17 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Investors, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
848,687
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 18 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UK Investment Plan 1997 Partners
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
15,926
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 19 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UK Investment Plan 1997, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
15,926
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 -- See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% -- See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 20 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson Lufkin & Jenrette, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 955,556
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
955,556
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 21 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Equitable Companies Incorporated
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 955,556
WITH
9 SOLE DISPOSITIVE POWER
955,556
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO, HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 22 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA - UAP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 23 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Finaxa
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 24 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances I.A.R.D. Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 25 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 26 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Courtage Assurance Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 27 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alpha Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 28 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claude Bebear, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 29 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrice Garnier, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP No. 45766110 Page 30 of 30 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henri de Clermont, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY See Item 5
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
955,556 - See Item 5 (not to be construed as an admission of
beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
69.0% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer
The class of equity securities to which this statement relates is the
common stock, $0.001 par value per share (the "Shares"), of Insilco Holding Co.,
a Delaware corporation ("Holdings"). The principal executive offices of Holdings
are located at 425 Metro Place North, 5th Floor, Dublin, Ohio 43017.
Item 2. Identity and Background.
This Schedule 13D is being filed jointly on behalf of the following persons
(collectively, the "Reporting Persons"): (1) DLJ Merchant Banking Partners II,
L.P., a Delaware corporation ("Partners II"); (2) DLJ Merchant Banking Partners
II-A, L.P., a Delaware limited partnership ("Partners II-A"); (3) DLJ Millennium
Partners - A, L.P. ("Millennium-A"); (4) DLJ Millennium Partners, L.P., a
Delaware limited partnership ("Millennium"); (5) DLJ EAB Partners, L.P., a
Delaware limited partnership ("DLJ EAB"); (6) DLJ Offshore Partners II, C.V., a
Netherlands Antilles limited partnership ("Offshore II"); (7) DLJ Merchant
Banking II, LLC, a Delaware limited partnership ("MBII LLC"); (8) DLJ Merchant
Banking II, Inc., a Delaware limited liability company ("MBII Inc."); (9) DLJ
Diversified Partners, L.P., a Delaware corporation ("Diversified"); (10) DLJ
Diversified Partners A, L.P., a Delaware limited partnership ("Diversified A");
(11) DLJ Diversified Associates, L.P., a Delaware limited partnership
("Diversified Associates"); (12) DLJ Diversified Partners, Inc., a Delaware
corporation ("Diversified Partners"); (13) DLJ First ESC L.P., a Delaware
limited partnership ("ESC"); (14) DLJ ESC II L.P., a Delaware limited
partnership ("ESC II"); (15) DLJ LBO Plans Management Corporation, a Delaware
corporation ("LBO"); (16) DLJ MB Funding II, Inc., a Delaware corporation
("Funding II"); (17) DLJ Capital Investors, Inc., a Delaware corporation
("DLJCI"); (18) UK Investment Plan 1997 Partners, a Delaware general partnership
("1997 Partners"); (19) UK Investment Plan 1997, Inc. ("Plan 1997" and together
with the previously listed entities, the "DLJ Entities"); (20) Donaldson, Lufkin
& Jenrette, Inc., a Delaware corporation ("DLJ"); (21) The Equitable Companies
Incorporated, a Delaware corporation ("EQ"); (22) AXA-UAP, a societe anonyme
organized under the laws of France ("AXA"); (23) Finaxa, a societe anonyme
organized under the laws of France; (24) AXA Assurances I.A.R.D. Mutuelle, a
mutual insurance company organized under the laws of France; (25) AXA Assurances
Vie Mutuelle, a mutual insurance company organized under the laws of France;
(26) AXA Courtage Assurance Mutuelle, a mutual insurance company organized under
the laws of France; (27) Alpha Assurances Vie Mutuelle, a mutual insurance
company organized under the laws of France; (28) Claude Bebear, Patrice Garnier
and Henri de Clermont-Tonnerre, trustees (the "AXA Voting Trustees") of a voting
trust (the "AXA Voting Trust") established pursuant to a Voting Trust Agreement
by and among AXA and the AXA Voting Trustees dated as of May 12, 1992, as
amended January 22, 1997.
Partners II, Partners II-A, Millennium, Millennium-A, Offshore II, EAB,
Diversified, Diversified-A, Funding II, 1997 Partners, ESC and ESC II are
collectively referred to as the "DLJ Funds".
Partners II, Partners II-A, Millennium and Millennium-A are Delaware
limited partnerships which make investments for long term appreciation. MBII LLC
is the Associate General Partner of Partners II and Partners II-A. MBII INC is
the Managing General Partner of Partners II and Partners II-A. MBII LLC and MBII
INC make all of the investment decisions on behalf of Millennium, Millennium-A,
Partners II and Partners II-A.
EAB is a Delaware limited partnership which makes investments for long term
appreciation. MBII LLC is the Associate General Partner of EAB and LBO is the
Managing General Partner of EAB. MBII LLC and LBO make all of the investment
decisions on behalf of EAB.
Offshore II is a Netherlands Antilles limited partnership which makes
investments for long term appreciation. MBII LLC is the Associate General
Partner of Offshore II. MBII INC is the Advisory General Partner of Offshore II.
MBII LLC and MBII INC make all of the investment decisions on behalf of Offshore
II.
MBII LLC is a Delaware limited liability company and is a registered
investment adviser. As the Associate General Partner of Partners II, Partners
II-A, Millennium, Millennium-A, EAB and Offshore II, MBII LLC, in conjunction
with MBII INC, participates in investment decisions made on behalf of these
entities. MBII INC is the managing member of MBII LLC.
MBII INC is a Delaware corporation and is a registered investment adviser.
As the Managing General Partner of Partners II, Partners II-A, Millennium and
Millennium-A, and the Advisory General Partner of Offshore II, MBII INC is
responsible for the day to day management of these entities and, in conjunction
with MBII LLC, participates in investment decisions made on behalf of these
entities. MBII INC is a wholly owned subsidiary of DLJCI.
Diversified and Diversified-A are Delaware limited partnerships which make
investments for long term appreciation. A portion of Diversified and
Diversified-A's capital commitments are dedicated to making side-by-side
investments with Partners II and Partners II-A, respectively. Diversified
Associates is the Associate General Partner of Diversified and Diversified-A and
Diversified Partners is the Managing General Partner of Diversified and
Diversified-A. Diversified Partners is responsible for the day to day management
of Diversified and Diversified-A.
Diversified Associates is a Delaware limited partnership and a registered
investment adviser. As the Associate General Partner of Diversified and
Diversified-A, Diversified Associates, in conjunction with Diversified Partners
and subject to the terms of the partnership agreement of Diversified and
Diversified-A, participates in the management of investments of Diversified and
Diversified-A. Diversified Partners is the general partner of Diversified
Associates.
Diversified Partners is a Delaware corporation and a registered investment
adviser. As the Managing General Partner of Diversified and Diversified-A,
Diversified Partners is responsible for the day to day management of Diversified
and Diversified-A. In conjunction with Diversified Associates, Diversified
Partners participates in the investment decisions made on behalf of Diversified
and Diversified-A. Diversified Partners is a wholly owned subsidiary of DLJCI.
ESC and ESC II are Delaware limited partnerships and "employees' securities
companies" as defined in the Investment Company Act of 1940, as amended. LBO, as
the Managing General Partner of ESC and ESC II, makes all of the investment
decisions on behalf of ESC and ESC II.
LBO is a Delaware corporation and a registered investment adviser. LBO is a
wholly owned subsidiary of DLJCI. As the Managing General Partner of EAB, ESC
and ESC II, LBO is responsible for the day-to-day management of EAB, ESC and ESC
II.
Funding II is a Delaware corporation which makes investments for long term
appreciation generally side-by-side with Partners II. Funding II is a wholly
owned subsidiary of DLJCI.
DLJCI is a Delaware corporation and is a holding company. DLJCI is a wholly
owned subsidiary of DLJ.
1997 Partners is a Delaware general partnership which makes investments for
long term appreciation generally side-by-side with Partners II. Plan 1997 and
DLJ are each general partners of 1997 Partners.
Plan 1997 is a Delaware corporation. Plan 1997 is a wholly owned subsidiary
of DLJ.
DLJ is a publicly held Delaware corporation. DLJ directly owns all of the
capital stock of DLJCI and Plan 1997. DLJ, acting on its own behalf or through
its subsidiaries, is a registered broker/dealer and registered investment
adviser engaged in investment banking, institutional trading and research,
investment management and financial and correspondent brokerage services.
EQ is a Delaware corporation and is a holding company. As of August 26,
1998, EQ owned, directly or indirectly, 72.3% of DLJ.
AXA is a societe anonyme organized under the laws of France and a holding
company for an international group of insurance and related financial services
companies. As of March 1, 1998, approximately 59% of the outstanding common
stock of EQ was beneficially owned by AXA. For insurance regulatory purposes, to
insure that certain indirect minority shareholders of AXA will not be able to
exercise control over EQ and certain of its insurance subsidiaries, the voting
shares of EQ capital stock beneficially owned by AXA and its subsidiaries have
been deposited into the AXA Voting Trust. For additional information regarding
the AXA Voting Trust, reference is made to the Schedule 13D filed by AXA with
respect to EQ. As of August 26, 1998, AXA and AXA Holding (Belgium), an
affiliate of AXA directly owned in the aggregate 1.5% of DLJ.
Finaxa is a societe anonyme organized under the laws of France and is a
holding company. As of March 1, 1998, Finaxa controlled directly and indirectly
approximately 21.4% of the issued ordinary shares (representing approximately
30.2% of the voting power) of AXA.
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances Vie Mutuelle, AXA
Courtage Assurance Mutuelle, and Alpha Assurances Vie Mutuelle (collectively,
the "Mutuelles AXA") is a mutual insurance company organized under the laws of
France. Each of the Mutuelles AXA is owned by its policy holders. As of March 1,
1998, the Mutuelles AXA, as a group, control approximately 62.0% of the issued
shares (representing approximately 74.0% of the voting power) of Finaxa.
Including the ordinary shares owned by Finaxa, on March 1, 1998, the Mutuelles
AXA directly or indirectly controlled approximately 24.7% of the issued ordinary
shares (representing approximately 34.8% of the voting power) of AXA. Acting as
a group, the Mutuelles AXA control AXA and Finaxa.
Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, the AXA
Voting Trustees, exercise all voting rights with respect to the shares of EQ
capital stock beneficially owned by AXA and its subsidiaries that have been
deposited in the AXA Voting Trust. The business address, citizenship and present
principal occupation of each of the AXA Voting Trustees are set forth on
Schedule I attached hereto.
The address of the principal business and office of each of the DLJ
Entities and DLJ is 277 Park Avenue, New York, New York 10172. The address of
the principal business and principal office of EQ is 1290 Avenue of the
Americas, New York, New York 10104.
The address of the principal business and principal office of AXA and the
AXA Voting Trustees is 9 Place Vendome, 75001 Paris, France. The address of
Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of AXA Assurances
I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is 21, rue de Chateaudun,
75009 Paris, France; of AXA Courtage Assurance Mutuelle is 26, rue Louis le
Grand, 75002 Paris, France; and of Alpha Assurances Vie Mutuelle is Tour
Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042 Paris La Defense, France.
The name, business address, citizenship, present principal occupation or
employment and the name and business address of any corporation or organization
in which each such employment is conducted, of each executive officer or member,
as applicable, of the Board of Directors, Supervisory Board, or the Conseil
d'Administration (French analogue of a Board of Directors) of EQ, AXA, Finaxa
and the Mutuelles AXA are set forth on Schedules A through O, respectively,
attached hereto.
During the past five (5) years, neither any of the Reporting Persons nor,
to the best knowledge of any of the Reporting Persons, any of the other persons
listed on Schedules A through O attached hereto, has been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to United States federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The general and limited partners of the DLJ Funds contributed
$43,000,020.00 for 955,556 shares.
Item 4. Purpose of Transaction.
On March 24, 1998, Silkworm Acquisition Corporation ("Silkworm"), Insilco
Corporation, a Delaware corporation ("Insilco") and Holdings entered into the
Agreement and Plan of Merger (as amended, the "Merger Agreement", attached
hereto and made a part hereof as Exhibit 3. The Merger Agreement provides for an
initial reorganization of Insilco whereby an existing wholly-owned subsidiary of
Holdings will form a wholly-owned subsidiary which will merge with and into
Insilco, with Insilco being the surviving corporation (the "Reorganization
Merger"). In connection with the Reorganization Merger, the existing
shareholders of Insilco will exchange their shares in Insilco for shares in
Holdings, resulting in Insilco becoming a wholly-owned subsidiary of Holdings.
Following consummation of the Reorganization Merger, the Merger Agreement
provides for the merger of Silkworm with and into Holdings (the "Merger"), with
Holdings continuing as the surviving corporation. The Merger contemplates that
approximately 96.6% of the issued and outstanding shares of common stock of
Holdings will be converted into cash and that approximately 3.4% of such shares
will be retained by existing stockholders of Insilco. The transactions
contemplated by the Merger Agreement were approved by the stockholders of
Insilco and were consummated, in each case, on August 17, 1998 (the "Closing
Date").
Item 5. Interest in Securities of the Issuer.
Pursuant to the terms of the Merger Agreement, on the Closing Date, (i)
Insilco filed a Certificate of Merger with the Secretary of State of Delaware
with respect to the Reorganziation Merger, which was effective as of the filing
of such certificate (the "Reorganization Effective Time") and (ii) promptly
following the Reorganziation Effective Time, Holdings filed a Certificate of
Merger with the Secretary of State of Delaware with respect to the Merger; which
was effective as of the filing of such certificate (the "Effective Time"). In
connection therewith, immediately prior to the Reorganization Effective Time,
(1) Silkworm entered into a Subscription Agreement with the DLJ Funds and 399
Venture Partners, Inc. ("CVC"), dated August 17, 1998 (the "Subscription
Agreement", attached hereto and made a part hereof as Exhibit 4) pursuant to
which the DLJ Funds and CVC purchased shares of common stock of Silkworm on the
terms set forth therein and (ii) Holdings entered into a Subscription Agreement
with the DLJ Funds, dated August 17, 1998 (the "Preferred Stock Subscription
Agreement", attached hereto and made a part hereof as Exhibit 5) pursuant to
which the DLJ Funds purchased shares of 15% senior exchangeable preferred stock
due 2010 on the terms set forth therein. At the Effective Time, each outstanding
share of Silkworm common stock was converted into one Share. Immediately
following the Effective Time, the DLJ Funds' approximate ownership of the
outstanding common stock of Holdings was 69.0%.
In addition, Holdings, the DLJ Funds and CVC have entered into an
Investors' Agreement dated as of August 17, 1998 (the "Investors' Agreement")
(attached hereto and made a part hereof as Exhibit 6).
Pursuant to the Investors' Agreement, the Board of Directors will comprise
7 members, 4 of whom will be nominated by Partners II, one of whom will be
Robert L. Smialek for so long as he is employed by Holdings, one of whom will be
nominated by CVC as long as CVC holds more than 10% of the outstanding common
stock of Holdings (on a fully diluted basis), and one of whom will be nominated
by Partners II after consultation with the other stockholders of Holdings other
than the DLJ Funds (the "Other Shareholders") but shall not be either an
"Affiliate" nor an "Associate" (as such terms are used within the meaning of
Rule 12b-2 under the Securities Exchange Act of 1934) of the DLJ Entities or the
Other Shareholders. Each of the parties to the Investors' Agreement has agreed
to vote its shares of Holdings in favor of the persons so nominated, provided
that the Other Shareholders will not be required to vote for Partners II's
nominees if the number of Shares held by the DLJ Funds is less than 10% of their
Initial Ownership (defined as the number of Shares held by the DLJ Funds as of
the date of the Investors' Agreement).
Until such time as CVC owns 10% or less of its Initial Ownership of Shares,
CVC or its Permitted Transferees (together, the "CVC Entities") may sell or
otherwise transfer their Shares only as follows: (i) to a Permitted Transferee;
(ii) pursuant to the Tag-along Rights described below; (iii) pursuant to the
Drag-along Rights described below; and (iv) in a public offering.
The Investors' Agreement provides that if the DLJ Funds propose to sell
Shares, the Other Sshareholders will have the right to participate in the sale
("Tag-along Rights"). If Tag-along Rights apply, the DLJ Funds will inform the
Other Shareholders (the "Tag Shareholders") of the terms and conditions of the
proposed sale and offer each Tag Shareholder the opportunity to participate. If
the number of Shares that the DLJ Funds and the Tag Shareholders propose to sell
exceeds the number that can be sold on the terms and conditions proposed by the
buyer, the DLJ Funds and each Tag Shareholder who has exercised Tag-along Rights
will be entitled to sell up to his or her Tag Along Portion. Tag Along Portion
shall mean the number of Shares owned by such Tag Shareholder multiplied by a
fraction, the numerator of which shall be the maximum number of Shares proposed
to be sold by the DLJ Funds and the denominator of which shall be the total
number of Shares (on a fully diluted basis) held by the DLJ Funds. To the extent
any Tag Shareholder sells less than such Tag Shareholder's Tag Along Portion,
the DLJ Funds shall be entitled to sell their own Shares in lieu of such Tag
Shareholder. The DLJ Funds and the Tag Shareholders who have exercised Tag-along
Rights may sell their Shares on substantially the same terms and conditions set
forth in the notice (subject to an increase in the amount of consideration of up
to 10%) within 120 days of the date all Tag-along Rights are waived, exercised
or expire.
The Investors' Agreement contemplates that if (i) the DLJ Funds propose to
sell Shares constituting not less than 50% of their Initial Ownership of Shares
in a bona fide third party sale, or (ii) the DLJMB Funds propose a sale in which
the Shares to be sold by the DLJ Funds and their permitted transferees
constitute more than 50% of the outstanding Shares held by all shareholders, the
DLJ Funds will be entitled to compel the Other Shareholders to participate in
the sale ("Drag-along Rights") with respect to the Shares owned by each Other
Shareholder which constitute the Drag-along Portion of the number of Shares that
such person owns. Drag-along Portion shall mean as to any Other Shareholder the
number of Shares such person owns (on a fully diluted basis) multiplied by a
fraction the numerator of which is the number of Shares to be sold by the DLJ
Funds and the denominator of which is the total number of Shares (on a fully
diluted basis) owned by the DLJ Funds.
The DLJ Funds have the right to request Holdings to register for sale their
Shares, on five occasions, if the aggregate proceeds expected to be received
from such sale exceeds $50,000,000 (in the case of the First Public Offering) or
$25,000,000 in all other cases. The CVC Entities have the right to request
Holdings to register for sale their Shares on one occasion if (i) the Transfer
Percentage of the CVC Entities is less than the Transfer Percentage of the DLJ
Entities, (ii) the DLJ Entities have transferred (other than to any of their
Permitted Transferees) 70% or more of the sum of (x) their collective Initial
Ownership of Shares and (y) any additional Shares issued by Holdings to the DLJ
Entities after August 17, 1998 in an issuance of Shares that was offered to the
DLJ Entities and the CVC Entities on a pro rata basis and (iii) the aggregate
proceeds expected to be received from such sale exceeds $50,000,000 (in the case
of the First Public Offering) or $25,000,000 in all other cases. Each party to
the Investors' Agreement has the right, subject to certain limitations, to
request Holdings to include its Shares in any registration undertaken by
Holdings. All requests for registration are subject to certain other customary
terms and conditions.
While each of the DLJ Entities may be deemed to beneficially own Shares
held by the Other Shareholders, each of the DLJ Entities disclaims beneficial
ownership of those Shares held by the Other Shareholders.
As the sole stockholder of DLJCI, DLJ may be deemed, for purposes of Rule
13d-3 under the Act, to beneficially own indirectly the Shares that may be
deemed to be owned beneficially by DLJCI. Because of EQ's ownership of DLJ, EQ
may be deemed, for purposes of Rule 13d-3 under the Act, to beneficially owned
indirectly the Shares that may be deemed to be beneficially owned indirectly by
DLJ. Each of DLJ and EQ disclaims beneficial ownership of the Shares.
Because of AXA's ownership interest in EQ, and the AXA Voting Trustees'
power to vote the EQ shares placed in the AXA Voting Trust, each of AXA and the
AXA Voting Trustees may be deemed, for purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the Shares that EQ may be deemed to beneficially own
indirectly. Because of the direct and indirect ownership interest in AXA of
Finaxa and the Mutuelles AXA, each of Finaxa and the Mutuelles AXA may be
deemed, for purposes of Rule 13d-3 under the Act, to beneficially own indirectly
the Shares that AXA may be deemed to beneficially own indirectly. AXA, Finaxa,
the Mutuelles AXA, and the AXA Voting Trustees expressly disclaim beneficial
ownership of any of the Shares.
Subject to market conditions and other factors, the DLJ Funds or other
affiliates of DLJ may acquire or dispose of Shares of Holdings from time to time
in future open-market, privately negotiated or other transactions, may enter
into agreements with third parties relating to acquisitions of securities issued
or to be issued by Holdings, may enter into agreements with the management of
Holdings relating to acquisitions of Shares of Holdings by members of
management, issuances of options to management or their employment by Holdings,
or may effect other similar agreements or transactions.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
See response to Item 4.
A copy of each of the Merger Agreement, the Subscription Agreement, the
Preferred Stock Subscription Agreement, the Investors' Agreement, Amendment No.
1 to the Merger Agreement and Amendment No. 2 to the Merger Agreement are
attached hereto as Exhibits 3, 4, 5, 6, 7 and 8 are incorporated herein by
reference. The summaries of the terms of the Merger Agreement, the Subscription
Agreement, the Preferred Stock Subscription Agreement, the Investors' Agreement,
Amendment No. 1 and Amendment No. 2 to the Merger Agreement set forth herein are
qualified in their entirety by reference to Exhibits 3, 4, 5, 6, 7 and 8,
respectively.
Except for the agreements described above or in the response to Item 4, to
the best knowledge of the Reporting Persons, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between the
persons enumerated in Item 2, and any other person, with respect to any
securities of Holdings, including, but not limited to, transfer or voting of any
of the securities, finder's fees, joint ventures, loan or option arrangements,
puts or calls, guarantees of profits, division of profits or loss, or the giving
or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
EXHIBIT INDEX
-------------
Exhibit No. Description Page
- ----------- ----------- ----
Exhibit 99.1: Joint filing agreement among the Reporting Persons
Exhibit 99.2: Powers of Attorney
Exhibit 99.3: Agreement and Plan of Merger date as of March 24, 1998
among Hodlings (formerly known as INR Holding Co.), Insilco
and Silkworm.
Exhibit 99.4: Subscription Agreement dated as of May 22, 1998 among
Silkworm, the DLJ Funds and CVC.
Exhibit 99.5: Preferred Stock Subscription Agreement dated as of August
17, 1998 among Holdings and the DLJ Funds.
Exhibit 99.6: Investors' Agreement dated as of August 17, 1998 among
Holdings, the DLJ Funds and CVC.
Exhibit 99.7: Amendment No. 1 to the Agreement and Plan of Merger among
Holdings, Insilco and Silkworm.
Exhibit 99.8: Amendment No. 2 to the Agreement and Plan of Merger among
Holdings, Insilco and Silkworm.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Merchant Banking Partners II, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
---------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Merchant Banking Partners II-A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
---------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Millennium Partners, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Millennium Partners-A, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ EAB Partners, L.P.
By DLJ LBO Plans Management Corporation
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Offshore Partners II, C.V.
By DLJ Merchant Banking II, Inc.,
as Advisory General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Merchant Banking II, LLC
By DLJ Merchant Banking II, Inc.,
as Managing Member
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Merchant Banking II, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Diversified Partners, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Diversified Partners-A, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Diversified Associates, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Diversified Partners, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ First ESC, L.P.
By DLJ LBO Plans Management Corporation,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ ESC II L.P.
By DLJ LBO Plans Management Corporation,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ LBO Plans Management Corporation
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJMB Funding II, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
DLJ Capital Investors, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
UK Investment Plan 1997 Partners
By UK Investment Plan 1997, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President, Secretary
and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
UK Investment Plan 1997, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President, Secretary
and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
-------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and
Controller
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 28, 1998
AXA-UAP
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting
Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
--------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
SCHEDULE A
Executive Officers and Directors
of
DLJ Merchant Banking II, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Merchant Banking II, Inc. ("MBII INC") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of MBII INC at
277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to MBII INC and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Nicole S. Arnaboldi Managing Director
* Thompson Dean Managing Director
Carlos Garcia Managing Director
* Peter T. Grauer Managing Director
* David L. Jaffe Managing Director
* Lawrence M.v.D. Schloss Managing Director and Chief
Operating Officer
* Karl R. Wyss Managing Director
- ------------------
* Director
SCHEDULE B
Executive Officers and Directors
of
DLJ Diversified Partners, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Diversified Partners, Inc. ("DP INC") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of DP INC at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to DP INC and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Lawrence M.v.D. Schloss Managing Director and Chief Operating Officer;
Managing Director and Chief Operating Officer,
DLJ Merchant Banking II, Inc.
* Marjorie S. White Secretary and Treasurer; Vice President and
Secretary, Donaldson, Lufkin & Jenrette, Inc.
- ------------------
* Director
SCHEDULE C
Executive Officers and Directors
of
DLJMB Funding, II, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ MB Funding, II, Inc. ("Funding II") and their business addresses
and principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of Funding II at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Funding II and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Charles J. Hendrickson Treasurer; Senior Vice President and Treasurer,
Donaldson, Lufkin & Jenrette, Inc.
Marjorie S. White Secretary; Vice President and Secretary,
Donaldson, Lufkin & Jenrette, Inc.
- ------------------
* Director
SCHEDULE D
Executive Officers and Directors
of
DLJ LBO Plans Management Corporation
The names of the Directors and the names and titles of the Executive
Officers of DLJ LBO Plans Management Corporation ("LBO") and their business
addresses and principal occupations are set forth below. Each Director's or
Executive Officer's business address is that of LBO at 277 Park Avenue, New
York, New York 10172. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to LBO and each individual is a United
States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Vincent DeGiaimo Vice President; Senior Vice President and
Managing Director, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Vice President and Secretary; Vice President,
Donaldson, Lufkin & Jenrette, Inc.
- ------------------
* Director
SCHEDULE E
Executive Officers and Directors
of
DLJ Capital Investors, Inc.
The names of the Directors and the names and titles of the Executive
Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business addresses
and principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of DLJCI at 277 Park
Avenue, New York, New York 10172. Unless otherwise indicated, each occupation
set forth opposite an individual's name refers to DLJCI and each individual is a
United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman; Chairman and Chief Executive
Officer, Donaldson, Lufkin & Jenrette, Inc.
* Hamilton E. James Chief Executive Officer; Managing Director,
Donaldson, Lufkin & Jenrette, Inc.
* Joe L. Roby Chief Operating Officer; President and Chief
Operating Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Anthony F. Daddino Executive Vice President and Chief Financial
Officer; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Secretary and Treasurer; Vice President and
Secretary, Donaldson, Lufkin & Jenrette, Inc.
- ------------------
* Director
SCHEDULE F
Executive Officers and Directors
of
UK Investment Plan 1997, Inc.
The names of the Directors and the names and titles of the Executive
Officers of UK Investment Plan 1997, Inc. ("UKIP 1997 INC") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of UKIP 1997 INC
at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to UKIP 1997 INC and
each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Vice President, Secretary and Treasurer; Vice
President and Secretary, Donaldson, Lufkin &
Jenrette, Inc.
* Stuart S. Flamberg Director of Taxes; Senior Vice President and
Director of Taxes, Donaldson, Lufkin &
Jenrette, Inc.
* Mark A. Competiello Tax Manager; Senior Vice President and Tax
Manager, Donaldson, Lufkin & Jenrette, Inc.
- ------------------
* Director
SCHEDULE G
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the Executive
Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of DLJ at 277
Park Avenue, New York, New York 10172. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to DLJ and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* John S. Chalsty Chairman
* Joe L. Roby President and Chief Operating Officer
* Claude Bebear (1) Chairman of the Executive Board, AXA-UAP
AXA-UAP
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Senior Executive Vice President
AXA-UAP Financial Services and Life Insurance
23, avenue Matignon Activities (U.S. & U.K.), AXA-UAP
75008 Paris, France
* Denis Duverne (1) Senior Vice President - International Life,
AXA-UAP AXA-UAP
23, avenue Matignon
75008 Paris, France
* Louis Harris Chairman and Chief Executive Officer, LH
LH Research Research (research)
152 East 38th Street
New York, New York 10016-2605
* Henri G. Hottinguer (2) Chairman and Chief Executive Officer,
Banque Hottinguer Banque Hottinguer (banking)
38, rue de Provence
75009 Paris, France
* W. Edwin Jarmain President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525, Box 36
121 King Street, West
Toronto, Ontario
M5H 3T9 Canada
* Francis Jungers Retired
19880 NW Nestucca Drive
Portland, Oregon 97229
* Edward D. Miller President and Chief Executive Officer, The
1290 Avenue of the Americas Equitable Companies Incorporated
New York, New York 10104
* W. J. Sanders, III Chairman and Chief Executive Officer,
Advanced Micro Devices, Inc. Advanced Micro Devices
901 Thompson Place
Sunnyvale, CA 94086
* Stanley B. Tulin Executive Vice President and Chief Financial
Officer, The Equitable Companies
Incorporated
* John C. West Retired
Bothea, Jordan & Griffin
23B Shelter Cove
Hilton Head Island, SC 29928
* Carl B. Menges Vice Chairman of the Board
* Hamilton E. James Managing Director
* Richard S. Pechter Managing Director
* Theodore P. Shen Managing Director
* Anthony F. Daddino Executive Vice President and Chief Financial
Officer
- ------------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
SCHEDULE H
Executive Officers and Directors
of
The Equitable Companies Incorporated
The names of the Directors and the names and titles of the Executive
Officers of The Equitable Companies Incorporated ("EQ") and their business
addresses and principal occupations are set forth below. If no address is given,
the Director's or Executive Officer's business address is that of EQ at 1290
Avenue of the Americas, New York, New York 10104. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to EQ and each
individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear (1) Chairman of the Executive Board, AXA-UAP
AXA-UAP
23, avenue Matignon
75008 Paris, France
* John S. Chalsty Chairman, Donaldson, Lufkin & Jenrette, Inc.
Donaldson, Lufkin &
Jenrette, Inc.
277 Park Avenue
New York, NY 10172
* Francoise Colloc'h (1) Senior Executive Vice President, Group Human
AXA-UAP Resources and Communications, AXA-UAP
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Chairman of the Board; Senior Executive Vice
AXA-UAP President, Financial Services and Life
23, avenue Matignon Insurance Activities, U.S. & U.K.), AXA-UAP
75008 Paris, France
* Joseph L. Dionne Chairman and Chief Executive Officer, The
The McGraw-Hill Companies McGraw-Hill Companies (publishing)
1221 Avenue of the Americas
New York, NY 10020
* William T. Esrey Chairman and Chief Executive Officer, Sprint
Sprint Corporation Corporation (telecommunications)
P.O. Box 11315
Kansas City, MO 64112
* Jean-Rene Fourtou (1) Chairman and Chief Executive Officer, Rhone-
Rhone-Poulenc S.A. Poulenc S.A. (manufacturer of pharmaceuticals
25 quai Paul Doumer and specialty chemicals and agricultural
92408 Courbevoie Cedex products)
France
* Jacques Friedmann (1) Chairman of the Supervisory Board, AXA-UAP
AXA-UAP
9, Place Vendome
75001 Paris
France
Robert E. Garber Executive Vice President and General Counsel;
Executive Vice President and General Counsel,
The Equitable Life Assurance Society of the
United States
Jerome S. Golden Executive Vice President; Executive Vice
President, The Equitable Life Assurance
Society of the United States
* Donald J. Greene, Esq. Counselor-at-Law, Partner, LeBoeuf, Lamb,
LeBoeuf, Lamb, Greene Greene & MacRae, L.L.P. (law firm)
& MacRae, L.L.P.
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman and Chief Executive Officer,
Fox-Pitt, Kelton Group Limited Fox-Pitt, Kelton Group Limited (finance)
35 Wilson Street
London, England EC2M 2SJ
* John T. Hartley Retired Chairman and Chief Executive Officer,
Harris Corporation currently Director, Harris Corporation
1025 NASA Boulevard (manufacturer of electronic, telephone and
Melbourne, FL 32919 copying systems)
* John H. F. Haskell, Jr. Director and Managing Director, SBC Warburg
SBC Warburg Dillon Read Inc. Dillon Read, Inc.(formerly Dillon, Read &
535 Madison Avenue Co., Inc.) (investment banking firm)
New York, NY 10022
* Michael Hegarty Vice Chairman and Chief Operating Officer;
President and Chief Operating Officer, The
Equitable Life Assurance Society of the
United States
* Mary R. (Nina) Henderson President, Bestfoods Grocery (food
Bestfoods Grocery manufacturer)
700 Sylvan Avenue
Englewood, NJ 07632
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525
121 King Street West
Toronto, Ontario M5H 3T9
Canada
* Edward D. Miller President and Chief Executive Officer;
Chairman and Chief Executive Officer, The
Equitable Life Assurance Society of the
United States
Peter D. Noris Executive Vice President and Chief Investment
Officer; Executive Vice President and Chief
Investment Officer, The Equitable Life
Assurance Society of the United States
* Didier Pineau-Valencienne(1) Chairman and Chief Executive Officer,
64/70, avenue Jean Baptiste Schneider S.A. (electric equipment)
Clement
92646 Boulogne Cedex, France
* George J. Sella, Jr. Retired Chairman, President and Chief
American Cyanamid Company Executive Officer, American Cyanamid Company
P.O. Box 397 (manufacturer of pharmaceutical products and
Newton, NJ 07860 agricultural products)
Jose Suquet Executive Vice President; Senior Executive
Vice President and Chief Distribution
Officer; The Equitable Life Assurance
Society of the United States
Stanley B. Tulin Executive Vice President and Chief Financial
Officer; Vice Chairman and Chief Financial
Officer, The Equitable Life Assurance
Society of the United States
* Dave H. Williams Chairman and Chief Executive Officer,
Alliance Capital Alliance Capital Management Corp. (investment
Management Corporation adviser)
1345 Avenue of the Americas
New York, NY 10105
- ------------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of United Kingdom
(3) Citizen of Canada
SCHEDULE I
Members of Executive Committee and Supervisory Board
of
AXA-UAP
The names and titles (for the Executive Committee members) of the Members
of the Executive Committee and Supervisory Board of AXA-UAP and their business
addresses and principal occupations are set forth below. If no address is given,
the Member's business address is 23, avenue Matignon, 75008 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA-UAP and each individual is a citizen of the Republic of
France.
Members of the Executive Committee
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
Claude Bebear Chairman of the Executive Board
Donald Brydon (1) Senior Executive Vice President, AXA
Asset Management Europe
Henri de Castries Senior Executive Vice President,
Financial Services and Insurance
Activities (U.S. and U.K.)
John Chalsty (2) Senior Executive Vice President,
Chairman, Donaldson, Lufkin & Jenrette, Inc.
(investment banking)
Francoise Colloch Senior Executive Vice President, Group Human
Resources and Communications
Jean-Pierre Gerard (3) Senior Executive Vice President, Chief Executive
Officer, Royale Beige (insurance)
Denis Kessler Senior Executive Vice President,
Insurance Activities outside France, U.K. and U.S.
Claas Kleyboldt (4) Senior Executive Vice President; Chairman of the
Executive Board of AXA Colonia (insurance)
Gerard de La Martiniere Senior Executive Vice President, Chief Financial
Officer
Edward D. Miller (2) Senior Executive Vice President; President and Chief
Executive Officer, The Equitable Companies
Incorporated
Jean-Louis Meunier Senior Executive Vice President, Central Underwriting
Officer
Michel Pinault Senior Executive Vice President, Group
Administration
Claude Tendil Senior Executive Vice President, French Insurance
Activities, international risks, transborder
insurance projects and information systems policy
Geoff Tomlinson (5) Senior Executive Vice President; Managing Director,
National Mutual Holdings (insurance)
Dave H. Williams (2) Senior Executive Vice President; Chairman and Chief
Executive Officer, Alliance Capital Management
Corporation (investment adviser)
Mark Wood (1) Senior Executive Vice President; Managing Director,
Sun Life & Provincial Holdings plc
Members of the Supervisory Board
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
- ---------------------- ----------------------------
<S> <C>
Jacques Friedmann Chairman of the Supervisory Board
9, Place Vendome
75008 Paris, France
Jean-Louis Beffa Chairman and Chief Executive Officer,
"Les Miroirs" Compagnie de St. Gobain (industry)
Cedex 27
92096 Paris La Defense, France
Antoine Bernheim General Partner, Lazard Freres et Cie (investment
121, Avenue Haussman banking); Chairman, Assicurazioni Generali S.p.A.
75008 Paris, France (insurance)
Jacques Calvet Former Chairman of the Executive Board, Peugeot
75, avenue de la Grande Armee S.A. (auto manufacturer)
75116 Paris, France
David Dautreseme General Partner, Lazard Freres et Cie (investment
121, Boulevard Haussman banking)
75008 Paris, France
Guy Dejouany Honorary Chairman, Compagnie Generaledes Eaux
52, rue d'Anjou (industry and services)
75008 Paris, France
Paul Desmarais (7) Chairman and Chief Executive Officer, Power
751, Square Victoria Corporation (industry and services)
Montreal Quebec
H3Y 3JY Canada
Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
25, quai Paul Doumer Poulenc S.A. (industry)
93408 Courbevoie Cedex
France
Michel Francois-Poncet Chairman of the Supervisory Board, Compagnie
5, Rue d'Antin Financiere de Paribas (financial services and banking)
75002 Paris, France
Patrice Garnier Director, Finaxa
Latreaumont
76360 Baretin, France
Anthony J. Hamilton (1) General Partner, Fox-Pitt, Kelton Group Limited
35 Wilson Street (finance)
London, England EC2M 2SJ
Henri Hottinguer (6) Vice Chairman, Financier Hottinguer (banking)
38, rue de Provence
75009 Paris, France
Richard H. Jenrette (2) Senior Advisor, Donaldson, Lukfin & Jenrette, Inc.
c/o Donaldson, Lukfin & (investment banking)
Jenrette, Inc.
277 Park Avenue
New York, New York 10172
Henri Lachmann Chairman and Chief Executive Officer, Stafor Facom
56, rue Jean Giraudoux (office furniture)
67200 Strasbourg, France
Gerard Mestallet Chairman of the Executive Board
1, rue d'Astorg (finance) Suez Lyonnaise des Eaux
75008 Paris, France
Friedel Neuber Chairman of the Executive Board, WestDeutsche
Girozentrade Herzogstrasse 15 Landesbank (banking)
D40127 Dusseldorf, Germany
Alfred von Oppenheim (4) Chairman, Bank Oppenheim (banking)
Konsortium Oppenheim
Unter Sachsenrausen 4
50667 Koln, Germany
Michel Pebereau Chairman and Chief Executive Officer, Banque
16, Boulevard des Italiens Nationale de Paris (banking)
75009 Paris, France
Didier Pineau-Valencienne Chairman and Chief Executive Officer, Schneider S.A.
64-70, avenue Jean Baptiste Clement (electric equipment)
92646 Boulogne Cedex, France
Bruno Roger General Partner, Lazard Freres & Cie (investment
121, Boulevard Hausmann banking)
75008 Paris, France
Simone Rozes First Honorary President, Cour de Cassation
2, rue Villaret de Joyeuse (government)
75017 Paris, France
</TABLE>
- ------------------
(1) Citizen of the United Kingdom
(2) Citizen of the United States of America
(3) Citizen of Belgium
(4) Citizen of Germany
(5) Citizen of Australia
(6) Citizen of Switzerland
(7) Citizen-of Canada
SCHEDULE J
Executive Officers and
Members of Conseil d'Administration
of
FINAXA
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Finaxa and their business addresses and
principal occupations are set forth below. If no address is given, the Member's
or Executive Officer's business address is that of Finaxa at 23, avenue
Matignon, 75008 Paris, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Finaxa and each individual is a
citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman and Chief Executive Officer;
Chairman of the Executive Board, AXA-UAP
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
25, quai Paul Doumer Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Hottinguer (1) Chairman and Chief Executive Officer, Banque
38, rue de Provence Hottinguer (banking)
75009 Paris, France
* Paul Hottinguer (1) Assistant Chairman and Chief Executive
38, rue de Provence Officer, Banque Hottinguer (banking)
75009 Paris, France
* Henri Lachmann Chairman and Chief Executive Officer, Strafor
56, rue Jean Giraudoux Facom (office furniture)
67000 Strasbourg, France
* Andre Levy-Lang Chief Executive Officer, Paribas
3, rue d'Antin (banking)
75002 Paris, France
Christien Manset Vice Chairman of the Supervisory Board,
3, rue d'Antin Banque Paribas
75002 Paris, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
Emilio Ybarra (2) Chairman, Banco Bilbao Vizcaya (banking)
Paseo de la Castillone, 8
28046 Madrid, Spain
- ------------------
* Member, Conseil d'Administration
(1) Citizen of Switzerland
(2) Citizen of Spain
SCHEDULE K
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances I.A.R.D. Mutuelle and each individual is a citizen
of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Executive
23, avenue Matignon Board, AXA-UAP
75008 Paris, France
Jean-Luc Bertozzi Executive Officer
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie
5, rue la Bruyere (industry)
75009 Paris, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President,
23, avenue Matignon Financial Services and Life Insurance
75008 Paris, France Activities (U.S. & U.K.), AXA-UAP
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67000 Strasbourg, France
* Francois Richer Retired
Georges Rousseau Retired
* 2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior
Executive Vice President, French
Insurance Activities, AXA- UAP
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management
75018 Paris, France consulting)
* Francis Vaudour Chief Executive Officer, Segafredo
14, boulevard Industriel Zanetti France S.A. (coffee importing
76301 Sotteville les Rouen, France and processing)
- ------------------
* Member, Conseil d'Administration
SCHEDULE L
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to AXA Assurances Vie Mutuelle and each individual is a citizen of the
Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
Jean-Luc Bertozzi Executive Vice President
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie
11, rue de Rome (industry)
75008 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S. &
75008 Paris, France U.K.), AXA-UAP
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
25, quai Paul Doumer Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office furniture)
67000 Strasbourg, France
* Francois Richer Retired
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan,
France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
Tour Assur 38 President, French Insurance Activities, AXA-
92083 Paris La Defense, UAP
France
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management
75018 Paris, France consulting)
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen,
France
- ------------------
* Member, Conseil d'Administration
SCHEDULE M
Executive Officers and
Members of Conseil d'Administration
of
AXA COURTAGE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of AXA Courtage Assurance Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of AXA
Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Courtage Assurance Mutuelle and each individual is a citizen
of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
* Francis Cordier Chairman and Chief Executive Officer, Group
rue Nicephore Niepce Demay Lesieur (food industry)
BP 232 76304 Sotteville
Les Rouen, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S. &
75008 Paris, France U.K.), AXA-UAP
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
25, quai Paul Doumer Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office furniture)
67000 Strasbourg, France
* Francis Magnan Chairman and Chief Executive Officer,
50, boulevard des Dames Compagnie Daher (air and sea transportation)
13002 Marseille, France
* Jean de Ribes Chairman and Chief Executive Officer, Banque
38, rue Fortuny Rivaud (banking)
75008 Paris, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan,
France
* Jean-Paul Saillard Manager, AXA-UAP
23, avenue Matignon
75008 Paris, France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
Tour Assur 38 President, French Insurance Activities, AXA-
92083 Paris La Defense, UAP
France
- ------------------
* Member, Conseil d'Administration
SCHEDULE N
Executive Officers and
Members of Conseil d'Administration
of
ALPHA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names and
titles of the Executive Officers of Alpha Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no address
is given, the Member's or Executive Officer's business address is that of Alpha
Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11,
92042 Paris La Defense, France. Unless otherwise indicated, each occupation set
forth opposite an individual's name refers to Alpha Assurances Vie Mutuelle and
each individual is a citizen of the Republic of France.
Name, Business Address Present Principal Occupation
---------------------- ----------------------------
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
* Henri Brischoux Corporate Secretary; AXA Assurance France
Tour Assua 38
92083 Paris La Defense,
France
* Bernard Cornille Audit Manager, AXA Assurances
21, rue de Chateaudun
75009 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S. &
75008 Paris, France U.K.), AXA-UAP
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
4, avenue Van Dyke SCA (transportation)
75008 Paris, France
* Claude Fath Chairman of the Executive Board, UAP Vie
Tour Assur 28F
92083 Paris Las Defense,
France
* Jean-Rene Fourtou Chairman and Chief Executive Officer, Rhone-
25, quai Paul Doumer Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief Executive
56, rue Jean Giraudoux Officer, Strafor Facom (office furniture)
67000 Strasbourg, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan,
France
* Claude Tendil Chief Executive Officer; Senior Executive Vice
Tour Assur 38 President, French Insurance Activities, AXA-
92083 Paris La Defense, UAP
France
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen,
France
- ------------------
* Member, Conseil d'Administration
EXHIBIT 99.1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange
Act of 1934, as amended, each of the persons named below agrees to the joint
filing of a Statement on Schedule 13D (including amendments thereto) with
respect to the common stock, par value $0.001, of Insilco Corporation, a
Delaware corporation and further agrees that this Joint Filing Agreement be
included as an exhibit to such filings provided that, as contemplated by
Section 13d-1(f)(l)(ii), no person shall be responsible for the completeness
or accuracy of the information concerning the other persons making the filing,
unless such person knows or has reason to believe that such information is
inaccurate. This Joint Filing may be executed in any number of counterparts,
all of which together shall constitute one and the same instrument.
DLJ Merchant Banking Partners II, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Merchant Banking Partners II-A, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Millennium Partners, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Treasurer
DLJ Millennium Partners-A, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Treasurer
DLJ EAB Partners, L.P.
by: DLJ LBO Plans Management Corporation
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJ Offshore Partners II, C.V.
by: DLJ Merchant Banking II, Inc.
its: Advisory General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Merchant Banking II, LLC
by: DLJ Merchant Banking II, Inc.
its: Managing Member
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Merchant Banking II, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Partners, L.P.
by: DLJ Diversified Partners, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJ Diversified Partners-A L.P.
by: DLJ Diversified Partners, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Associates, L.P.
by: DLJ Diversified Partners, Inc.
its: General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Partners, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ First ESC, L.P.
by: DLJ LBO Plans Management Corporation
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJ ESC II, L.P.
by: DLJ LBO Plans Management Corporation
its: Managing General Partner
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJ LBO Plans Management Corporation
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJMB Funding II, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary
DLJ Capital Investors, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
UK Investment Plan 1997 Partners
by: UK Investment Plan 1997, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President, Secretary
and Treasurer
UK Investment Plan 1997, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President, Secretary
and Treasurer
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie S. White
-----------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
-----------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and Controller
AXA-UAP
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
-----------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
EXHIBIT 99.2
Power of Attorney
AXA, a societe anonyme organized under the laws of the Republic
of France (the "Corporation"), hereby constitutes and appoints each of Richard
V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting
singly, as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Corporation and in the name, place
and stead of the Corporation, in any and all capacities, to execute for and on
behalf of the Corporation, all Schedules 13D and Schedules 13G as required by
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, the
issuer and relevant stock exchanges (individually, each a "Filing"); provided,
however, that unless specifically instructed in writing by the Corporation,
this Power of Attorney does not authorize any of the above-listed
attorneys-in-fact and agents of the Corporation (or any person substituted or
resubstituted therefor) to execute or file for or on behalf of the Corporation
any Filing with respect to (i) the Common Stock, par value $.01 per share, of
The Equitable Companies Incorporated, a Delaware corporation, or (ii) the
Units Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
AXA
By: /s/ Claude Bebear
----------------------------------
Name: Claude Bebear
Title: Chairman and Chief
Executive Officer
Power of Attorney
Finaxa, a societe anonyme organized under the laws of the
Republic of France (the "Corporation"), hereby constitutes and appoints each
of Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Corporation and in the name,
place and stead of the Corporation, in any and all capacities, to execute for
and on behalf of the Corporation, all Schedules 13D and Schedules 13G as
required by the Securities Exchange Act of 1934, as amended, and any and all
amendments thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, the issuer and relevant stock exchanges (individually, each a
"Filing"); provided, however, that unless specifically instructed in writing
by the Corporation, this Power of Attorney does not authorize any of the
above-listed attorneys-in-fact and agents of the Corporation (or any person
substituted or resubstituted therefor) to execute or file for or on behalf of
the Corporation any Filing with respect to (i) the Common Stock, par value
$.01 per share, of The Equitable Companies Incorporated, a Delaware
corporation, or (ii) the Units Representing Assignments of Beneficial
Ownership of Limited Partnership Interests in Alliance Capital Management
L.P., a Delaware limited partnership. The Corporation hereby grants to such
attorneys-in-fact and agents of the Corporation full power and authority to
do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as the Corporation might or could,
and hereby ratifies and confirms all that said attorneys-in-fact and agents of
the Corporation or their substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
FINAXA
By: /s/ Claude Bebear
----------------------------------
Name: Claude Bebear
Title: Chairman and Chief
Executive Officer
Power of Attorney
AXA Assurances I.A.R.D. Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of the
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
AXA ASSURANCES I.A.R.D. MUTUELLE
By: /s/ Claude Tendil
----------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
AXA Assurances Vie Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of the
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
AXA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
----------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
Uni Europe Assurance Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of the
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
UNI EUROPE ASSURANCE MUTUELLE
By: /s/ Claude Tendil
----------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
Alpha Assurances Vie Mutuelle, a mutual insurance company
organized under the laws of the Republic of France (the "Corporation"), hereby
constitutes and appoints each of Richard V. Silver, Henry Q. Conley, Alvin H.
Fenichel and Allen J. Zabusky, acting singly, as the true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for the Corporation and in the name, place and stead of the
Corporation, in any and all capacities, to execute for and on behalf of the
Corporation, all Schedules 13D and Schedules 13G as required by the Securities
Exchange Act of 1934, as amended, and any and all amendments thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, the issuer and
relevant stock exchanges (individually, each a "Filing"); provided, however,
that unless specifically instructed in writing by the Corporation, this Power
of Attorney does not authorize any of the above-listed attorneys-in-fact and
agents of the Corporation (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Corporation any Filing
with respect to (i) the Common Stock, par value $.01 per share, of The
Equitable Companies Incorporated, a Delaware corporation, or (ii) the Units
Representing Assignments of Beneficial Ownership of Limited Partnership
Interests in Alliance Capital Management L.P., a Delaware limited partnership.
The Corporation hereby grants to such attorneys-in-fact and agents of the
Corporation full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as the Corporation might or could, and hereby ratifies and confirms all that
said attorneys-in-fact and agents of the Corporation or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Corporation, in serving in such capacity
at the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Corporation.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
ALPHA ASSURANCES VIE MUTUELLE
By: /s/ Claude Tendil
----------------------------------
Name: Claude Tendil
Title: Chief Executive Officer
Power of Attorney
Claude Bebear, as a Voting Trustee (the "Trustee"), pursuant to
a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a societe
anonyme organized under the laws of the Republic of France, and the Voting
Trustees identified therein, hereby constitutes and appoints each of Richard
V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting
singly, as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf
of the Trustee, all Schedules 13D and Schedules 13G as required by the
Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, the
issuer and relevant stock exchanges (individually, each a "Filing"); provided,
however, that unless specifically instructed in writing by the Trustee, this
Power of Attorney does not authorize any of the above-listed attorneys-in-
fact and agents of the Trustee (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Trustee any Filing with
respect to (i) the Common Stock, par value $.01 per share, of The Equitable
Companies Incorporated, a Delaware corporation, or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The Trustee
hereby grants to such attorneys-in-fact and agents of the Trustee full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the Trustee
might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Trustee, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
By: /s/ Claude Bebear
----------------------------------
Name: Claude Bebear
Title: Voting Trustee
Power of Attorney
Henri de Clermont-Tonnerre, as Voting Trustee (the "Trustee"),
pursuant to a Voting Trust Agreement dated as of May 12, 1992, by and among
AXA, a societe anonyme organized under the laws of the Republic of France and
the Voting Trustees identified herein, hereby constitutes and appoints each of
Richard V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky,
acting singly, as the true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for the Trustee and in the name,
place and stead of the Trustee, in any and all capacities, to execute for and
on behalf of the Trustee, all Schedules 13D and Schedules 13G as required by
the Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, the
issuer and relevant stock exchanges (individually, each a "Filing"); provided,
however, that unless specifically instructed in writing by the Trustee, this
Power of Attorney does not authorize any of the above-listed attorneys-in-fact
and agents of the Trustee (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Trustee any Filing with
respect to (i) the Common Stock, par value $.01 per share, of The Equitable
Companies Incorporated, a Delaware corporation, or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The Trustee
hereby grants to such attorneys-in-fact and agents of the Trustee full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the Trustee
might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Trustee, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
By: /s/ Henri de Clermont-Tonnerre
----------------------------------
Name: Henri de Clermont-Tonnerre
Title: Voting Trustee
Power of Attorney
Patrice Garnier, as a Voting Trustee (the "Trustee"), pursuant
to a Voting Trust Agreement dated as of May 12, 1992, by and among AXA, a
societe anonyme organized under the laws of Republic of France, and the Voting
Trustees identified therein, hereby constitutes and appoints each of Richard
V. Silver, Henry Q. Conley, Alvin H. Fenichel and Allen J. Zabusky, acting
singly, as the true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the Trustee and in the name, place and
stead of the Trustee, in any and all capacities, to execute for and on behalf
of the Trustee, all Schedules 13D and Schedules 13G as required by the
Securities Exchange Act of 1934, as amended, and any and all amendments
thereto, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, the
issuer and relevant stock exchanges (individually, each a "Filing"); provided,
however, that unless specifically instructed in writing by the Trustee, this
Power of Attorney does not authorize any of the above-listed attorneys-in-
fact and agents of the Trustee (or any person substituted or resubstituted
therefor) to execute or file for or on behalf of the Trustee any Filing with
respect to (i) the Common Stock, par value $.01 per share, of The Equitable
Companies Incorporated, a Delaware corporation or (ii) the Units Representing
Assignments of Beneficial Ownership of Limited Partnership Interests in
Alliance Capital Management L.P., a Delaware limited partnership. The Trustee
hereby grants to such attorneys-in-fact and agents of the Trustee full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the Trustee
might or could, and hereby ratifies and confirms all that said
attorneys-in-fact and agents of the Trustee or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
The undersigned acknowledges that the foregoing
attorneys-in-fact and agents of the Trustee, in serving in such capacity at
the request of the undersigned, are not assuming any of the undersigned's
responsibilities to comply with Section 13(d) of the Securities Exchange Act
of 1934.
The powers hereby conferred upon the said attorneys-in-fact and
agents shall continue in force until notice of the revocation of this Power of
Attorney has been received by the said attorneys-in-fact and agents of the
Trustee.
IN WITNESS WHEREOF, the undersigned has hereunto subscribed
this Power of Attorney this 24 day of June, 1996.
By: /s/ Patrice Garnier
----------------------------------
Name: Patrice Garnier
Title: Voting Trustee
EXHIBIT 99.3
AGREEMENT AND PLAN OF MERGER
dated as of
March 24, 1998
among
INSILCO CORPORATION,
INR HOLDING CO.
and
SILKWORM ACQUISITION CORPORATION
TABLE OF CONTENTS
----------
Page
----
ARTICLE 1
The Merger
Section 1.1. The Reorganization Merger...............................1
Section 1.2. The Merger..............................................3
Section 1.3. Surrender and Payment...................................5
Section 1.4. Dissenting Shares.......................................7
Section 1.5. Stock Options...........................................7
Section 1.6. Fractional Shares.......................................8
ARTICLE 2
The Surviving Corporation
Section 2.1. Certificate of Incorporation............................8
Section 2.2. Bylaws..................................................9
Section 2.3. Directors and Officers..................................9
ARTICLE 3
Representations and Warranties of the Company
Section 3.1. Corporate Existence and Power...........................9
Section 3.2. Corporate Authorization.................................9
Section 3.3. Governmental Authorization.............................10
Section 3.4. Non-Contravention......................................10
Section 3.5. Capitalization.........................................11
Section 3.6. Subsidiaries...........................................11
Section 3.7. SEC Filings............................................12
Section 3.8. Financial Statements...................................13
Section 3.9. Disclosure Documents...................................13
Section 3.10. Absence of Certain Changes.............................14
Section 3.11. No Undisclosed Material Liabilities....................15
Section 3.12. Litigation.............................................15
Section 3.13. Taxes..................................................15
Section 3.14. ERISA..................................................16
Section 3.15. Labor Matters..........................................19
Section 3.16. Compliance with Laws and Court Orders..................20
Section 3.17. Licenses and Permits...................................20
Section 3.18. Intellectual Property..................................20
Section 3.19. Finders' Fees..........................................20
Section 3.20. Required Votes.........................................21
Section 3.21. Environmental Matters..................................21
Section 3.22. Disclaimer.............................................23
ARTICLE 4
Representations and Warranties of MergerSub
Section 4.1. Corporate Existence and Power..........................23
Section 4.2. Corporate Authorization................................23
Section 4.3. Governmental Authorization.............................23
Section 4.4. Non-Contravention......................................24
Section 4.5. Disclosure Documents...................................24
Section 4.6. Finders' Fees..........................................24
Section 4.7. Financing..............................................25
Section 4.8. Capitalization.........................................25
ARTICLE 5
Covenants of the Company
Section 5.1. Conduct of the Company.................................26
Section 5.2. Stockholder Meeting; Proxy Material....................28
Section 5.3. Access to Information..................................29
Section 5.4. Other Offers...........................................29
Section 5.5. Resignation of Directors...............................32
Section 5.6. Solvency Opinion.......................................32
Section 5.7. Transfers by Affiliates................................32
ARTICLE 6
Covenants of MergerSub
Section 6.1. Voting of Shares.......................................33
Section 6.2. Director and Officer Liability.........................33
Section 6.3. Employee Plans and Benefit Arrangements................34
Section 6.4. Financing..............................................35
Section 6.5. NASDAQ Listing.........................................35
ARTICLE 7
Covenants of MergerSub and the Company
Section 7.1. Reasonable Best Efforts................................36
Section 7.2. Certain Filings........................................36
Section 7.3. Public Announcements...................................37
Section 7.4. Further Assurances.....................................37
Section 7.5. Reserved Shares........................................38
Section 7.6. Notices of Certain Events..............................38
ARTICLE 8
Conditions to the Merger
Section 8.1. Conditions to the Obligations of Each Party............39
Section 8.2. Conditions to the Obligations of MergerSub.............39
Section 8.3. Conditions to the Obligations of the Company and
ExistingSub............................................41
ARTICLE 9
Termination
Section 9.1. Termination............................................41
Section 9.2. Effect of Termination..................................43
ARTICLE 10
Miscellaneous
Section 10.1. Notices................................................43
Section 10.2. Survival of Representations and Warranties.............44
Section 10.3. Amendments; No Waivers.................................44
Section 10.4. Expenses...............................................45
Section 10.5. Successors and Assigns.................................45
Section 10.6. Governing Law..........................................45
Section 10.7. Counterparts; Effectiveness............................45
Section 10.8. Third Party Beneficiaries..............................45
Section 10.9. Entire Agreement.......................................45
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of March 24, 1998 among
Insilco Corporation, a Delaware corporation ("Insilco" or the "Company"), INR
Holding Co., a Delaware corporation ("ExistingSub"), and Silkworm Acquisition
Corporation, a Delaware corporation ("MergerSub").
W I T N E S S E T H:
WHEREAS, as of the date of execution of this Agreement, all of
the outstanding capital stock of, or other ownership interest in, MergerSub is
owned, in the aggregate, by DLJ Merchant Banking Partners II, L.P., and
certain of its affiliates;
WHEREAS, MergerSub is unwilling to enter into this Agreement
unless, contemporaneously with the execution and delivery of this Agreement,
Water Street Corporate Recovery Fund I, L.P., holder of 1,783,878 shares of
common stock of the Company, enters into a Voting Agreement (the "Voting
Agreement") providing for certain actions relating to such shares;
WHEREAS, the parties hereto desire to make certain
representations, warranties, covenants and agreements in connection with the
Mergers (as defined in Section 1.2) and also to prescribe certain conditions
to the Mergers; and
WHEREAS, it is intended that the Merger be recorded as a
recapitalization for financial reporting purposes.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE 1
The Merger
Section 1.1. The Reorganization Merger. (a) Prior to the
Effective Time (as defined in Section 1.2), Insilco shall cause (i)
ExistingSub to form a wholly-owned subsidiary ("ReorgSub") and (ii)
ReorgSub to merge with and into Insilco in the manner set forth in this
Section 1.1 (the "Reorganization Merger"), whereupon the separate existence
of ReorgSub shall cease, and Insilco shall be the surviving corporation,
possessing all the rights, privileges, powers and franchises and be subject
to all of the restrictions, disabilities and duties of Insilco and
ReorgSub, all as provided under the General Corporation Law of the State of
Delaware ("Delaware Law"). The parties hereto contemplate that the
Reorganization Merger will precede the Merger (as defined in Section 1.2),
but that each will occur on the same date.
(b) The Reorganization Merger shall be effected pursuant to an
agreement and plan of merger (the "Holding Company Merger Agreement") in
accordance with Delaware Law and in a manner that complies with Section 251(a)
of Delaware Law. The certificate of incorporation of Insilco shall be the
certificate of incorporation of the corporation surviving the Reorganization
Merger.
(c) Insilco and ReorgSub will file the Holding Company Merger
Agreement (or a certificate of merger in lieu thereof) with the Secretary of
State of the State of Delaware and make all other filings or recordings
required by Delaware Law in connection with the Reorganization Merger which
shall become effective at such time (the "Reorganization Effective Time") as
the Holding Company Merger Agreement (or a certificate of merger in lieu
thereof) is duly filed with the Secretary of State of the State of Delaware or
at such later time as is specified therein, but in any event prior to the
Effective Time.
(d) At the Reorganization Effective Time:
(i) (A) each share of common stock of ReorgSub held by
ReorgSub as treasury stock immediately prior to the
Reorganization Effective Time shall be canceled, and no payment
shall be made with respect thereto; and (B) each share of common
stock of ReorgSub outstanding immediately prior to the
Reorganization Effective Time shall be converted into and become
one share of common stock of the corporation surviving the
Reorganization Merger, with the same rights, powers and
privileges as the shares so converted;
(ii) (A) each share of common stock, par value $0.001 per
share, of Insilco (the "Shares") held by Insilco as treasury
stock (including the Reserved Shares (as defined in Section 3.5))
or owned by ReorgSub immediately prior to the Reorganization
Effective Time shall be canceled, and no payment shall be made
with respect thereto, and (B) each outstanding option (whether
vested or unvested) to acquire Shares granted to employees and
directors will be treated as set forth in Section 1.5(a); and
(iii) Except as otherwise provided in Section 1.04 with respect
to Shares as to which appraisal rights are exercised, each Share
outstanding immediately prior to the Reorganization Effective
Time shall be converted into the following (the "Reorganization
Merger Consideration"):
(A) one share of common stock, par value $0.001 per
share, of ExistingSub (the "ExistingSub Shares") with the
same rights, powers and privileges as the Shares so
converted; and
(B) the right to receive in cash an amount equal to
$0.01.
(e) Except for those stockholders who have exercised appraisal
rights with respect to their Shares, the stockholders of record of Insilco
immediately prior to the Reorganization Effective Time shall be the
stockholders of record of ExistingSub immediately after the Reorganization
Effective Time without further action by such stockholders or ExistingSub.
After the Reorganization Effective Time, the certificates (the "Certificates")
representing the Shares will continue to represent the ExistingSub Shares.
(f) For the avoidance of doubt, after the Reorganization Merger,
"Insilco" or the "Company" shall mean the corporation surviving the
Reorganization Merger.
Section 1.2. The Merger. (a) Prior to the Reorganization
Effective Time, the Company, acting as sole stockholder of ExistingSub, shall
pursuant to Section 228 of the Delaware Law, act by written consent to approve
this Agreement and the Merger and ExistingSub shall, no more than 20 days
prior to the Reorganization Effective Time, give notice to the Company, as
its sole stockholder, of the Merger, as required by Section 262(d) of
Delaware Law.
(b) At the Effective Time, MergerSub shall be merged (the "Merger"
and collectively with the Reorganization Merger, the "Mergers") with and into
ExistingSub in accordance with Delaware Law, and in accordance with the terms
and conditions hereof, whereupon the separate existence of MergerSub shall
cease, and ExistingSub shall be the surviving corporation, which will be named
"Insilco Holding Corporation" (the "Surviving Corporation").
(c) As soon as practicable after satisfaction or, to the extent
permitted hereunder, waiver of all conditions to the Merger, ExistingSub and
MergerSub will file a certificate of merger with the Secretary of State of the
State of Delaware and make all other filings or recordings required by
Delaware Law in connection with the Merger. The Merger shall become effective
at such time as the certificate of merger is duly filed with the Secretary of
State of the State of Delaware or at such later time as is specified in the
certificate of merger (the "Effective Time").
(d) The Company hereby represents that its Board of Directors (the
"Board of Directors"), at a meeting duly called and held and acting on the
unanimous recommendation of the Board of Directors has (i) unanimously
determined that this Agreement and the transactions contemplated hereby,
including the Mergers, are fair to and in the best interest of the Company's
stockholders, (ii) unanimously approved this Agreement and the Voting
Agreement and the transactions contemplated hereby, including the Mergers,
which approval satisfies in full the requirements of Section 203(a)(1) of
Delaware Law so as to make Section 203 of Delaware Law inapplicable to the
Mergers, and (iii) unanimously resolved to recommend adoption of this
Agreement and the Mergers to its stockholders. The Company further represents
that Lazard Freres & Co. LLC has delivered to the Board of Directors its oral
opinion (to be followed by its written opinion to the same effect) that the
Merger Consideration (as defined in Section 1.3) taken as a whole is fair to
the holders of the Shares (other than MergerSub and its affiliates) from a
financial point of view. The Company has been advised that all of its
directors and executive officers intend to vote all of their Shares in favor
of adoption of this Agreement and the Mergers.
(e) At the Effective Time:
(i) each ExistingSub Share held by ExistingSub as treasury
stock or owned by any direct or indirect wholly owned subsidiary
of ExistingSub (excluding the Company) or owned by MergerSub
immediately prior to the Effective Time shall be canceled, and no
payment shall be made with respect thereto;
(ii) each share of common stock, par value $0.001 per share,
of MergerSub ("MergerSub Common Stock") outstanding immediately
prior to the Effective Time shall be converted into and become
one share of common stock, par value $0.001 per share, of the
Surviving Corporation ("Surviving Corporation Shares") with the
same rights, powers and privileges as the MergerSub Common Stock
so converted;
(iii) each outstanding warrant to purchase MergerSub Common
Stock ("MergerSub Warrants") shall be automatically amended to
constitute a warrant to acquire one Surviving Corporation Share
on the same terms and conditions as the warrants so converted;
and
(iv) each ExistingSub Share outstanding immediately prior to
the Effective Time shall be converted into the following (the
"ExistingSub Merger Consideration"):
(A) the right to retain 0.03419 of a Surviving
Corporation Share, with the same rights, powers and
privileges as the ExistingSub Share so converted; and
(B) the right to receive in cash an amount equal to
$42.97.
Section 1.3. Surrender and Payment. (a) Prior to the mailing
of the Company Proxy Statement (as defined in Section 3.9), MergerSub shall
appoint an agent (the "Exchange Agent") for the purpose of exchanging the
Certificates for the cash portion of the Reorganization Merger Consideration
and the ExistingSub Merger Consideration (the cash portion of the
Reorganization Merger Consideration together with the ExistingSub Merger
Consideration shall be referred to herein as the "Merger Consideration"). The
Surviving Corporation will make available to the Exchange Agent, as needed,
the Merger Consideration to be paid in respect of the Shares and the
ExistingSub Shares. Promptly after the Effective Time, the Surviving
Corporation will send, or will cause the Exchange Agent to send, to each
holder of ExistingSub Shares at the Effective Time, a letter of transmittal for
use in such exchange (which shall specify that the delivery shall be effected,
and risk of loss and title shall pass, only upon proper delivery of the
Certificates to the Exchange Agent).
(b) Each holder of ExistingSub Shares at the Effective Time will,
upon surrender to the Exchange Agent of a Certificate or Certificates, together
with a properly completed letter of transmittal covering such ExistingSub
Shares, be entitled to receive the Merger Consideration payable in respect of
such ExistingSub Shares and in respect of the Shares which were converted into
such ExistingSub Shares. Payment of the cash portion of the Merger
Consideration shall, at the request of the holder of the relevant ExistingSub
Shares, be made by wire transfer of immediately available funds. Until so
surrendered, each such Certificate shall, after the Effective Time, represent
for all purposes only the right to receive such Merger Consideration and any
dividends payable pursuant to Section 1.3(g). No interest will be paid or will
accrue on any cash payable as Merger Consideration or any dividends payable
pursuant to Section 1.3(g).
(c) If any portion of the Merger Consideration is to be paid to a
Person other than the registered holder of the ExistingSub Shares represented
by the Certificate or Certificates surrendered in exchange therefor, it shall
be a condition to such payment that the Certificate or Certificates so
surrendered shall be properly endorsed or otherwise be in proper form for
transfer and that the Person requesting such payment shall pay to the Exchange
Agent any transfer or other taxes required as a result of such payment to a
Person other than the registered holder of such ExistingSub Shares or
establish to the satisfaction of the Exchange Agent that such tax has been
paid or is not payable. For purposes of this Agreement, "person" or "Person"
means a(n) individual, corporation, limited liability company, partnership,
association, trust or other entity or organization, including a government or
political subdivision or any agency or instrumentality thereof.
(d) After the Effective Time, there shall be no further
registration of transfers of ExistingSub Shares. If, after the Effective Time,
Certificates are presented to the Surviving Corporation, they shall be
canceled and exchanged for the Merger Consideration provided for, and in
accordance with the procedures set forth, in this Article 1.
(e) Any portion of the Merger Consideration made available to the
Exchange Agent pursuant to Section 1.3(a) that remains unclaimed by the
holders of ExistingSub Shares six months after the Effective Time shall be
returned to the Surviving Corporation, upon demand, and any such holder who
has not exchanged his ExistingSub Shares for the Merger Consideration in
accordance with this Section 1.3 prior to that time shall thereafter look only
to the Surviving Corporation for payment of the Merger Consideration in
respect of his ExistingSub Shares. Notwithstanding the foregoing, the
Surviving Corporation shall not be liable to any holder of ExistingSub Shares
for any amount paid to a public official pursuant to applicable abandoned
property laws. Any amounts remaining unclaimed by holders of ExistingSub
Shares two years after the Effective Time (or such earlier date immediately
prior to such time as such amounts would otherwise escheat to or become
property of any governmental entity) shall, to the extent permitted by
applicable law, become the property of the Surviving Corporation free and
clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the
Exchange Agent pursuant to Section 1.3(a) to pay for ExistingSub Shares that
were not issued pursuant to Section 1.1(d)(iii) as a result of the appraisal
rights exception thereto shall be returned to the Surviving Corporation, upon
demand, after the appraisal rights have been perfected in respect of the
related Shares pursuant to Section 1.04 and Delaware Law.
(g) No dividends or other distributions with respect to Surviving
Corporation Shares with a record date after the Effective Time shall be paid to
the holder of any unsurrendered Certificate until the surrender of such
Certificate in accordance with this Article 1. Subject to the effect of
applicable laws, following surrender of any such Certificate, there shall be
paid to the holder of the certificate representing whole Surviving Corporation
Shares issued in exchange therefor, without interest, (i) the amount of
dividends or other distributions with a record date after the Effective Time
but on or prior to such surrender and a payment date on or prior to such
surrender, paid with respect to such whole Surviving Corporation Shares, and
(ii) at the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time but on or prior to
such surrender and a payment date subsequent to such surrender payable with
respect to such whole Surviving Corporation Shares.
Section 1.4. Dissenting Shares. Shares which are issued and
outstanding immediately prior to the Reorganization Effective Time and which
are held by a holder who has not voted such Shares in favor of the Mergers,
who shall have delivered a written demand for appraisal of such Shares in the
manner provided by Delaware Law and who, as of the Reorganization Effective
Time, shall not have effectively withdrawn or lost such right to appraisal
("Dissenting Shares") shall not be converted into a right to receive the
Reorganization Merger Consideration (or, if after the Effective Time, the
Merger Consideration). The holders thereof shall be entitled only to such
rights as are granted by Section 262 of Delaware Law. Each holder of
Dissenting Shares who becomes entitled to payment for such Dissenting Shares
pursuant to Section 262 of Delaware Law shall receive payment therefor from
the Surviving Corporation in accordance with Delaware Law; provided, however,
that (i) if any such holder of Dissenting Shares shall have failed to
establish his entitlement to appraisal rights as provided in Section 262 of
Delaware Law, (ii) if any such holder of Dissenting Shares shall have
effectively withdrawn his demand for appraisal of such Shares or lost his right
to appraisal and payment for his Shares under Section 262 of Delaware Law, or
(iii) if neither any holder of Dissenting Shares nor the Surviving Corporation
shall have filed a petition demanding a determination of the value of all
Dissenting Shares within the time provided in Section 262 of Delaware Law,
such holder shall forfeit the right to appraisal of such Dissenting Shares and
each such Dissenting Share shall be converted into a right to receive the
Reorganization Merger Consideration (or, if after the Effective Time, the
Merger Consideration) without interest thereon, from the Surviving Corporation
as provided in Section 1.3 hereof. The Company shall give MergerSub prompt
notice of any demands received by the Company for appraisal of Shares, and
MergerSub shall have the right to participate in all negotiations and
proceedings with respect to such demands. The Company shall not, except with
the prior written consent of MergerSub, make any payment with respect to, or
settle or offer to settle, any such demands.
Section 1.5. Stock Options. (a) Immediately prior to the
Reorganization Effective Time, each outstanding option (whether vested or
unvested) to acquire Shares granted to employees and directors (the "Options")
shall be canceled and, in lieu thereof, immediately prior to the
Reorganization Effective Time, the holders of such Options shall receive a
cash payment from the Company equal to the product of (i) the total number of
Shares previously subject to such Options and (ii) the excess of $44.50 over
the exercise price per Share subject to such Options, subject to any required
withholding of taxes.
(b) Prior to the Reorganization Effective Time, the Company shall
(i) use its reasonable best efforts to obtain any consents from holders of
options to purchase Shares granted under the Company's stock option or
compensation plans or arrangements and (ii) make any amendments to the terms
of such stock option or compensation plans or arrangements that are necessary
to give effect to the transactions contemplated by Sections 1.1 and 1.5(a).
Notwithstanding any other provision of this Section 1.5, payment may be
withheld in respect of any Option until any necessary or appropriate consents
are obtained.
Section 1.6. Fractional Shares. (a) No certificates or scrip
representing fractional Surviving Corporation Shares shall be issued upon the
surrender for exchange of Certificates, and such fractional share interests
will not entitle the owner thereof to vote or to any rights of a stockholder
of the Surviving Corporation; and
(b) Notwithstanding any other provision of this Agreement, each
beneficial owner of ExistingSub Shares exchanged pursuant to the Merger who
would otherwise have been entitled to receive a fraction of a Surviving
Corporation Share (after taking into account all ExistingSub Shares delivered
by such beneficial owner) shall receive, in lieu thereof, a cash payment
(without interest) representing such same fraction of $44.49.
ARTICLE 2
The Surviving Corporation
Section 2.1. Certificate of Incorporation. The certificate of
incorporation of ExistingSub in effect immediately prior to the Effective Time
shall be amended in its entirety as of the Effective Time to read as set forth
in Exhibit A, and, as so amended, shall be the certificate of incorporation of
the Surviving Corporation until amended in accordance with applicable law.
Section 2.2. Bylaws. The bylaws of MergerSub in effect at the
Effective Time shall be the bylaws of the Surviving Corporation until amended
in accordance with applicable law.
Section 2.3. Directors and Officers. From and after the
Effective Time, until successors are duly elected or appointed and
qualified in accordance with applicable law, (a) the directors of MergerSub
at the Effective Time shall be the directors of the Surviving Corporation,
and (b) the officers of the Company at the Effective Time shall be the
officers of the Surviving Corporation.
ARTICLE 3
Representations and Warranties of the Company
Except as set forth in the disclosure schedules annexed hereto
(the "Disclosure Schedule"), the Company represents and warrants to MergerSub
that:
Section 3.1. Corporate Existence and Power. The Company and
ExistingSub are corporations duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, and have all corporate
powers required to carry on their businesses as now conducted. The Company
is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the character of the property owned or
leased by it or the nature of its activities makes such qualification
necessary, except for those jurisdictions where the failure to be so qualified
would not, individually or in the aggregate, have a Material Adverse Effect.
The Company has heretofore delivered to MergerSub true and complete copies of
the certificate of incorporation and bylaws of the Company and ExistingSub as
currently in effect. For purposes of this Agreement, "Material Adverse Effect"
means any material adverse effect on the financial condition, business,
assets, liabilities or results of operations of the Company and the
Subsidiaries (as defined in Section 3.6) taken as a whole, but excluding (i)
any liabilities or reserves that are reflected on, or reserved for in, the 1997
Financial Statements and (ii) any change resulting from general economic
conditions.
Section 3.2. Corporate Authorization. The execution, delivery
and performance by the Company and ExistingSub of this Agreement and the
consummation by the Company and ExistingSub of the transactions contemplated
hereby are within the Company's and ExistingSub's corporate powers and, except
for any required approval by the stockholders of the Company, ReorgSub and
ExistingSub by majority vote in connection with the consummation of the
Mergers, have been duly authorized by all necessary corporate and stockholder
action. This Agreement constitutes a valid and binding agreement of the
Company and ExistingSub.
Section 3.3. Governmental Authorization. The execution,
delivery and performance by the Company and ExistingSub of this Agreement and
the consummation of the Reorganization Merger by the Company and ExistingSub,
and the Merger by ExistingSub, require no action by or in respect of, or filing
with, any governmental body, agency, official or authority other than (a) the
filing of (i) a certificate of merger or the Holding Company Merger Agreement
in connection with the Reorganization Merger and (ii) a certificate of merger
in connection with the Merger; (b) compliance with any applicable requirements
of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and
regulations promulgated thereunder (the "HSR Act"); (c) compliance with any
applicable requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (the "Exchange Act"); (d)
compliance with the applicable requirements of the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder (the "Securities
Act"); (e) compliance with any applicable foreign or state securities or Blue
Sky laws; and (f) any actions or filings that if not taken or made would have
a Material Adverse Effect.
Section 3.4. Non-Contravention. The execution, delivery and
performance by the Company and ExistingSub of this Agreement and the
consummation by the Company and ExistingSub of the transactions contemplated
hereby do not and will not (a) contravene or conflict with the certificate of
incorporation or bylaws of the Company, ExistingSub or any Subsidiary, (b)
assuming compliance with the matters referred to in Section 3.3, contravene or
conflict with or constitute a violation of any provision of any law,
regulation, judgment, writ, injunction, order or decree of any court or
governmental authority binding upon or applicable to the Company, ExistingSub
or any Subsidiary or any of their properties or assets, (c) constitute a
default under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Company, ExistingSub or any
Subsidiary or to a loss of any benefit to which the Company, ExistingSub or
any Subsidiary is entitled under any provision of any agreement, contract or
other instrument binding upon the Company, ExistingSub or any Subsidiary or
any license, franchise, Permit (as defined in Section 3.17) or other similar
authorization held by the Company, ExistingSub or any Subsidiary, or (d)
result in the creation or imposition of any Lien on any asset of the Company,
ExistingSub or any Subsidiary, except, in the case of clauses (b), (c) and (d),
for any such violation, failure to obtain any such consent or other action,
default, right, loss or Lien that would not, individually or in the aggregate,
have a Material Adverse Effect. For purposes of this Agreement, "Lien" means,
with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset.
Section 3.5. Capitalization. The authorized capital stock of
the Company consists of 15,000,000 Shares of which as of March 16, 1998, there
were outstanding 4,016,711 Shares and Options to purchase an aggregate of not
more than 747,667 Shares (of which Options to purchase an aggregate of 420,266
Shares were exercisable) and 467,680 Shares were held in treasury (and no such
treasury stock is issuable or reserved for issuance, other than 66,682 Shares
(the "Reserved Shares") which are issuable or reserved for issuance pursuant
to the order discharging the Company from the protection of the United States
Federal Bankruptcy Court in 1993 (the "Bankruptcy Order")). All outstanding
Shares have been duly authorized and validly issued and are fully paid and
nonassessable. Except as set forth in this Section 3.5 and except for changes
since March 16, 1998 resulting from the exercise of Options outstanding on
such date, there are outstanding (a) no shares of capital stock or other
voting securities of the Company, (b) no securities of the Company convertible
into or exchangeable for shares of capital stock or voting securities of the
Company, and (c) no options or other rights to acquire from the Company, and
no obligation of the Company to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of the Company (the items in clauses (a), (b) and (c) being
referred to collectively as the "Company Securities"). There are no
outstanding obligations of the Company or any Subsidiary to repurchase, redeem
or otherwise acquire any Company Securities.
Section 3.6. Subsidiaries. (a) Each Significant Subsidiary
(as defined in Regulation S-X under the Exchange Act) is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers to carry on its
business as now conducted and is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the character
of the property owned or leased by it or the nature of its activities makes
such qualification necessary, except where failure to be existing in good
standing or so qualified would not, individually or in the aggregate, have a
Material Adverse Effect. For purposes of this Agreement, "Subsidiary" means
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 directly or
indirectly owned by the Company and/or one or more Subsidiaries.
(b) Except for Liens, limitations and restrictions arising under
the Amended and Restated Credit Agreement dated as of July 3, 1997 among the
Company and Insilco Deutschland Gmbh, as borrowers, various lenders and
issuing banks, The First National Bank of Chicago and Goldman Sachs Credit
Partners L.P., as syndication agents and Citicorp USA, Inc. as administrative
agent, and any related security arrangements, all of the outstanding capital
stock of, or other ownership interests in, each Subsidiary, is owned by the
Company, directly or indirectly, free and clear of any Lien and free of any
other limitation or restriction (including any restriction on the right to
vote, sell or otherwise dispose of such capital stock or other ownership
interests), except any that arise under applicable securities laws or that are
permitted by such credit agreement. All such capital stock has been duly
authorized and validly issued and is fully paid and non-assessable. There are
no outstanding (i) securities of the Company or any Subsidiary convertible
into or exchangeable for shares of capital stock or other voting securities or
ownership interests in any Subsidiary, and (ii) options or other rights to
acquire from the Company or any Subsidiary, and no other obligation of the
Company or any Subsidiary to issue, any capital stock, voting securities or
other ownership interests in, or any securities convertible into or
exchangeable for any capital stock, voting securities or ownership interests
in, any Subsidiary (the items in clauses (i) and (ii) being referred to
collectively as the "Subsidiary Securities"). There are no outstanding
obligations of the Company or any Subsidiary to repurchase, redeem or
otherwise acquire any outstanding Subsidiary Securities.
(c) ExistingSub was incorporated in Delaware prior to January 1,
1997. To the Company's knowledge, until the Reorganization Merger Effective
Time, neither the ExistingSub Shares nor the assets of ExistingSub has a
material value.
Section 3.7. SEC Filings. (a) The Company has delivered to
MergerSub (i) the Company's annual report on Form 10-K for the year ended
December 31, 1996 (the "Company 10-K"), (ii) its quarterly reports on Form
10-Q for the fiscal quarters ended March 31, 1997, June 30, 1997 and September
30, 1997 (together with the Company 10-K, the "Current SEC Reports"), (iii)
its proxy or information statements relating to meetings of, or actions taken
without a meeting by, the stockholders of the Company held since January 1,
1996, and (iv) all of its other reports, statements, schedules and
registration statements filed with the Securities and Exchange Commission (the
"SEC") since January 1, 1996 (collectively, the "SEC Documents").
(b) As of its filing date, each such report or statement filed
pursuant to the Exchange Act did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements made therein, in the light of the circumstances under which
they were made, not misleading.
(c) Each such registration statement, as amended or supplemented,
if applicable, filed pursuant to the Securities Act as of the date such
statement or amendment became effective did not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
Section 3.8. Financial Statements. The audited consolidated
financial statements and unaudited consolidated interim financial statements
of the Company included in the Current SEC Reports, and the draft unaudited
consolidated financial statements of the Company previously delivered to
MergerSub (the "1997 Financial Statements"), fairly present, in all material
respects and in conformity with generally accepted accounting principles
applied on a consistent basis (except as may be indicated in the notes
thereto), the consolidated financial position of the Company and its
consolidated Subsidiaries as of the dates thereof and their consolidated
results of operations and changes in financial position for the periods then
ended (subject to normal year-end adjustments in the case of any unaudited
interim financial statements). The final audited consolidated financial
statements of the Company for the year ended December 31, 1997 will be
substantially identical to the 1997 Financial Statements, other than any
disclosures necessary to reflect the execution of this Agreement by the
Company and ExistingSub and any transactions contemplated hereby. For
purposes of this Agreement, "Balance Sheet" means the consolidated balance
sheet of the Company and its subsidiaries as of December 31, 1997 set forth in
the 1997 Financial Statements, and "Balance Sheet Date" means December 31,
1997.
Section 3.9. Disclosure Documents. (a) Each document
required to be filed by the Company with the SEC in connection with the
Mergers (but excluding the Financing) (the "Company Disclosure Documents"),
including, without limitation, any Report on Form 8-K to be filed by the
Company in respect of this Agreement, and the proxy statement of the Company
containing information required by Regulation 14A under the Exchange Act to be
filed with the SEC in connection with the Mergers (the "Company Proxy
Statement"), and any amendments or supplements thereto will, when filed,
comply as to form in all material respects with the applicable requirements of
the Exchange Act. The representations and warranties contained in this
Section 3.9(a) will not apply to statements or omissions in the Company
Disclosure Documents based upon information furnished to the Company by
MergerSub for use therein.
(b) At the time the Company Proxy Statement or any amendment or
supplement thereto is first mailed to stockholders of the Company, and at the
time such stockholders vote on adoption of this Agreement and the Mergers, the
Company Proxy Statement, as supplemented or amended, if applicable, will not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading. At the time of
the filing of any Company Disclosure Document, other than the Company Proxy
Statement, and at the time of any required distribution thereof, such Company
Disclosure Document will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties contained in this Section
3.9(b) will not apply to statements or omissions in the Company Disclosure
Documents based upon information furnished to the Company by MergerSub for use
therein.
(c) The information with respect to the Company or any Subsidiary
that the Company furnishes to MergerSub for use in any document filed by
MergerSub with the SEC will not, at the time of the filing thereof and at the
time of any required distribution thereof, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
Section 3.10. Absence of Certain Changes. Since the Balance
Sheet Date, the Company and the Subsidiaries have conducted their business in
the ordinary course consistent with past practice and there has not been:
(a) any event, occurrence or development of a state of
circumstances or facts which has had or reasonably would be expected to have a
Material Adverse Effect;
(b) any declaration, setting aside or payment of any dividend or
other distribution with respect to any shares of capital stock of the Company,
or any repurchase, redemption or other acquisition by the Company of any
outstanding shares of capital stock or other securities of, or other ownership
interests in, the Company;
(c) except as disclosed in the SEC Documents, any amendment of any
material term of any outstanding security of the Company or any Subsidiary;
(d) except as disclosed in the SEC Documents, any incurrence,
assumption or guarantee by the Company or any Subsidiary of any indebtedness
for borrowed money other than in the ordinary course of business consistent
with past practices;
(e) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of the Company or any
Subsidiary which, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect;
(f) (i) any material change in any method of accounting, or
accounting practice by the Company or any Subsidiary or (ii) any revaluation
in any material respect of any of the material assets of the Company or any
Subsidiary, except for any such change or revaluation required by reason of a
concurrent change in generally accepted accounting principles; or
(g) except as disclosed in the SEC Documents, any (i) grant of any
severance or termination pay to any director or executive officer of the
Company or any Subsidiary, (ii) entering into of any employment, deferred
compensation or other similar agreement (or any amendment to any such existing
agreement) with any director or executive officer of the Company or any
Subsidiary, or (iii) increase in compensation, bonus or other benefits
(including severance or other termination benefits) payable to directors,
officers or employees of the Company or any Subsidiary, other than in the
ordinary course of business consistent with past practice.
Section 3.11. No Undisclosed Material Liabilities. There are
no liabilities of the Company or any Subsidiary of any kind whatsoever, whether
accrued, contingent, absolute, determined, determinable or otherwise, which
individually or in the aggregate would be reasonably likely to have a Material
Adverse Effect, other than:
(a) liabilities disclosed or provided for in the Balance Sheet or
the balance sheets (and the notes thereto) included in the Company's reports on
Form 10-Q referred to in Section 3.7(a);
(b) liabilities incurred in the ordinary course of business
consistent with past practice since the Balance Sheet Date; and
(c) liabilities under this Agreement.
Section 3.12. Litigation. Except as set forth in the SEC
Documents, there is no action, suit, investigation or proceeding (or any basis
therefor) pending against, or to the knowledge of the Company threatened
against or affecting, the Company or any Subsidiary or any of their respective
properties before any court or arbitrator or any governmental body, agency or
official which would reasonably be expected to have a Material Adverse Effect.
Section 3.13. Taxes. (a) All tax returns, statements, reports
and forms (including estimated tax returns and reports and information returns
and reports) required to be filed with any taxing authority by or on behalf of
the Company or any Subsidiary of the Company (collectively, the "Returns"),
were filed when due (including any applicable extension periods).
(b) The Company and its Subsidiaries have timely paid, or withheld
and remitted to the appropriate taxing authority, all taxes shown as due and
payable on the Returns that have been filed.
(c) The charges, accruals and reserves for taxes with respect to
the Company and any Subsidiary (including for any tax period for which no
Return has yet been filed) reflected on the books of the Company and its
Subsidiaries (excluding any provision for deferred income taxes) are adequate
to cover taxes for which the Company and any such Subsidiary are liable.
(d) There is no material claim (including under any
indemnification or tax-sharing agreement), audit, action, suit, proceeding, or
investigation now pending or threatened in writing against or in respect of
any tax or tax asset of the Company or any Subsidiary (other than any in
respect of which a reserve or allowance has been recorded in the 1997
Financial Statements). For purposes of this Section 3.13, the term "tax
asset" shall include any net operating loss, net capital loss, investment tax
credit, foreign tax credit or charitable deduction.
(e) There are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any Returns of the Company or any
of its Subsidiaries.
(f) There are no Liens for taxes upon the assets of the Company or
its Subsidiaries except for Liens for current taxes not yet due, and except for
Liens that, individually or in the aggregate, would not have a Material
Adverse Effect.
Section 3.14. ERISA. (a) The Disclosure Schedule sets forth a
list identifying each material "employee pension benefit plan", as defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974 ("ERISA"),
which (i) is subject to any provision of ERISA and (ii) is maintained,
administered or contributed to by the Company or any affiliate (as defined
below) and covers any employee or former employee of the Company or any
affiliate or under which the Company or any affiliate has any material
liability. Within five business days of the date hereof, the Company will make
available to MergerSub copies of such plans (and, if applicable, related trust
agreements) and all amendments thereto and written interpretations, together
with (A) the three most recent annual reports (Form 5500 including, if
applicable, Schedule B thereto) prepared in connection with any such plan and
(B) the most recent actuarial valuation report prepared in connection with any
such plan, in each case only to the extent not previously made available. Such
plans are referred to collectively herein as the "Employee Plans". For
purposes of this Section 3.14, "affiliate" of any Person means any other
Person which, together with such Person, would be treated as a single employer
under Section 414 of the Code. The only Employee Plans which individually or
collectively would constitute (x) an "employee pension benefit plan" as
defined in Section 3(2) of ERISA (the "Pension Plans") or (y) a "multiemployer
plan", as defined in Section 3(37) of ERISA (a "Multiemployer Plan") are
identified as such in the list referred to above.
(b) No Employee Plan is maintained in connection with any trust
described in Section 501(c)(9) of the Code. The only Employee Plans that are
subject to Title IV of ERISA (the "Retirement Plans") are identified in the
list of such Plans provided to MergerSub by the Company. As of the Balance
Sheet Date, the fair market value of the aggregate assets of the Retirement
Plans (excluding for these purposes any accrued but unpaid contributions)
exceeded the projected benefit obligations on an aggregate basis accrued under
such Retirement Plans as in effect on such date. No "accumulated funding
deficiency", as defined in Section 412 of the Code, has been incurred with
respect to any Retirement Plan, whether or not waived. The Company knows of no
"reportable event", within the meaning of Section 4043 of ERISA, and no event
described in Section 4041, 4042, 4062 or 4063 of ERISA has occurred in
connection with any Employee Plan, other than a "reportable event" or other
event that will not have a Material Adverse Effect. To the Company's
knowledge, no current condition exists and no event has occurred that (i)
would constitute grounds for termination of any Retirement Plan and neither
the Company nor any of its affiliates has incurred any liability under Title
IV of ERISA arising in connection with the termination of, or complete or
partial withdrawal from, any Retirement Plan covered or previously covered by
Title IV of ERISA that would have a Material Adverse Effect or (ii) presents a
material risk of complete or partial withdrawal from any Multiemployer Plan
which would result in the Company or any Subsidiary incurring a withdrawal
liability within the meaning of Section 4201 of ERISA that would have a
Material Adverse Effect. The assets of the Company and all of its
Subsidiaries are not now, nor, to the Company's knowledge, will they after the
passage of time be, subject to any lien imposed under Section 412(n) of the
Code by reason of a failure of any of the Company or any of its affiliates to
make timely installments or other payments required under Section 412 of the
Code. Nothing done or omitted to be done, and no transaction or holding of
any asset under or in connection with any Employee Plan, has made or will make
the Company or any Subsidiary, or any officer or director of the Company or
any Subsidiary, subject to any liability under Title I of ERISA or liable for
any tax pursuant to Section 4975 of the Code that could have a Material
Adverse Effect.
(c) Each Employee Plan which is intended to be qualified under
Section 401(a) of the Code is so qualified and to the Company's knowledge has
been so qualified during the period from its adoption to date and each trust
forming a part thereof is exempt from tax pursuant to Section 501(a) of the
Code. The Company will furnish to MergerSub within five days of the date
hereof copies of the most recent Internal Revenue Service determination letters
with respect to each such Employee Plan's qualified status. Except as would
not have a Material Adverse Effect, each Employee Plan has been maintained in
compliance with its terms and with the requirements prescribed by any and all
statutes, orders, rules and regulations, including but not limited to ERISA
and the Code, which are applicable to such Employee Plan.
(d) There is no contract, agreement, plan or arrangement covering
any employee or former employee of the Company or any affiliate that,
individually or collectively, would give rise to the payment of any amount that
would not be deductible pursuant to the terms of Section 280G of the Code.
(e) "Benefit Arrangements" means each material, written plan or
arrangement providing for insurance coverage (including any self-insured
arrangements), severance, disability benefits, supplemental unemployment
benefits, vacation benefits, retirement benefits or for deferred compensation,
profit-sharing, bonuses, stock options, stock appreciation or other forms of
incentive compensation or post-retirement insurance, compensation or benefits
which (i) is not an Employee Plan, (ii) is entered into, maintained or
contributed to, as the case may be, by the Company or any of its affiliates and
(iii) covers any U.S. employee or former employee of the Company or any of its
affiliates. Copies or descriptions of all such foregoing Benefit Arrangements
will be made available to MergerSub within five business days of the date
hereof to the extent not previously made available. Each Benefit Arrangement
has been maintained in compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and regulations that are
applicable to such Benefit Arrangement except where any noncompliance would
have a Material Adverse Effect.
(f) The present value of the projected liability in respect of
post-retirement health and medical benefits for retired employees of the
Company and its affiliates is set forth fairly, in all material respects, in
the 1997 Financial Statements. To the Company's knowledge, each "employee
welfare benefit plan" (within the meaning of Section 3(1) of ERISA) providing
health or medical benefits in respect of any active non-union employee of the
Company or any Subsidiary may by its terms be amended or terminated.
(g) There has been no amendment to, written interpretation or
written announcement by the Company or any of its affiliates relating to any
Employee Plan or Benefit Arrangement which would increase materially the
expense of maintaining such Employee Plan or Benefit Arrangement above the
level of the expense incurred in respect thereof for the fiscal year ended on
the Balance Sheet Date.
(h) The Company is not a party to or subject to any employment
contract with any executive officer or director of the Company.
(i) Except as would not have a Material Adverse Effect, each
material International Plan has been maintained in substantial compliance with
its terms and with the requirements prescribed by any and all applicable
statutes, orders, rules and regulations (including any special provisions
relating to qualified plans where such Plan was intended to so qualify) and
has been maintained in good standing with applicable regulatory authorities.
With respect to each material International Plan, there has been no amendment
to, written interpretation of or written announcement by the Company or any
Subsidiary relating to, or change in employee participation or coverage under,
any such material International Plan that would increase materially the expense
of maintaining such material International Plan above the level of expense
incurred in respect thereof for the most recent fiscal year ended prior to the
date hereof.
"International Plan" means any employment, severance or similar
contract or arrangement (whether or not written) or any plan, policy, fund,
program or arrangement or contract providing for severance, insurance coverage
(including any self-insured arrangements), workers' compensation, disability
benefits, supplemental unemployment benefits, vacation benefits, pension or
retirement benefits or for deferred compensation, profit-sharing, bonuses,
stock options, stock appreciation rights or other forms of incentive
compensation or post-retirement insurance, compensation or benefits that (i) is
not an Employee Plan or a Benefit Arrangement, (ii) is entered into,
maintained, administered or contributed to by the Company or any Subsidiary
and (iii) covers any non U.S. employee of the Company or any Subsidiary.
Section 3.15. Labor Matters. The Company and its Subsidiaries
are in compliance with all currently applicable laws respecting employment
practices, terms and conditions of employment and wages and hours, and are not
engaged in any unfair labor practice, the failure to comply with which or
engagement in which, as the case may be, would have a Material Adverse Effect.
There is no unfair labor practice complaint pending or, to the knowledge of
the Company, threatened against the Company or any Subsidiary before the
National Labor Relations Board or otherwise which if adversely resolved is
likely to have a Material Adverse Effect. There are no strikes, slowdowns,
union organizational campaigns or other protected concerted activity under the
National Labor Relations Act or, to the knowledge of the Company, threats
thereof, by or with respect to any employees of the Company or any Subsidiary
which would have a Material Adverse Effect.
Section 3.16. Compliance with Laws and Court Orders. Neither
the Company nor any Subsidiary is in violation of, or has since January 1, 1996
violated, and to the knowledge of the Company none is under investigation with
respect to or has been threatened to be charged with or given notice of any
violation of, any applicable law, rule, regulation, judgment, injunction,
order or decree, except for violations that would not, individually or in the
aggregate, have a Material Adverse Effect.
Section 3.17. Licenses and Permits. Except as would not,
individually or in the aggregate have a Material Adverse Effect, (i) each
license, franchise, permit, certificate, approval or other similar
authorization affecting, or relating in any way to, the assets or business of
the Company and its Subsidiaries (the "Permits") is valid and in full force
and effect and (ii) neither the Company nor any Subsidiary is in default
under, and no condition exists that with notice or lapse of time or both would
constitute a default under, the Permits.
Section 3.18. Intellectual Property. The Company and the
Subsidiaries own or possess adequate licenses or other rights to use all
Intellectual Property Rights necessary to conduct the business now operated by
them, except where the failure to own or possess such licenses or rights would
not be reasonably likely to have a Material Adverse Effect. To the knowledge
of the Company, the Intellectual Property Rights of the Company and the
Subsidiaries do not conflict with or infringe upon any Intellectual Property
Rights of others to the extent that, if sustained, such conflict or
infringement would be reasonably likely to have a Material Adverse Effect. For
purposes of this Agreement, "Intellectual Property Right" means any trademark,
service mark, trade name, mask work, copyright, patent, software license,
other data base, invention, trade secret, know-how (including any
registrations or applications for registration of any of the foregoing) or any
other similar type of proprietary intellectual property right.
Section 3.19. Finders' Fees. With the exception of Lazard
Freres & Co. LLC and Goldman Sachs & Co., copies of whose engagement agreements
have been provided to MergerSub, there is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of the Company or any Subsidiary who might be entitled to any fee or
commission from the Company or any Subsidiary or any of its affiliates upon
consummation of the transactions contemplated by this Agreement. For purposes
of this Agreement (other than Section 3.14), "Affiliate" or "affiliate" means,
with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with such other Person.
Section 3.20. Required Votes. The adoption of this Agreement
by the affirmative vote of the holders of Shares entitling such holders to
exercise at least a majority of the voting power of the Shares, the vote of
the Company as sole stockholder of ExistingSub and the vote of ExistingSub as
sole stockholder of ReorgSub are the only votes of holders of any class or
series of the capital stock of the Company, ExistingSub and ReorgSub required
to adopt this Agreement, or to approve the Mergers or any of the other
transactions contemplated hereby and no higher or additional vote is required
pursuant to the Company's or ExistingSub's certificate of incorporation or
otherwise.
Section 3.21. Environmental Matters. (a) (i) No action, suit,
investigation or proceeding is pending against, or, to the knowledge of the
Company, is threatened by any Person against, the Company or any Subsidiary
which has a reasonable likelihood of an adverse determination nor has any
material penalty been assessed against the Company or any Subsidiary with
respect to any (A) alleged violation of any Environmental Law or liability
thereunder, (B) alleged failure to have any permit, certificate, license,
approval, registration or authorization required under any Environmental Law,
(C) generation, treatment, storage, recycling, transportation or disposal of
any Hazardous Substance or (D) discharge, emission or release of any Hazardous
Substance, except for such actions, suits, investigations, proceedings and
penalties which, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect;
(ii) no Hazardous Substance has been discharged, emitted,
released or is present at any property now or previously owned,
leased or operated by the Company or any Subsidiary, which
circumstance, individually or in the aggregate, would reasonably
be expected to result in a Material Adverse Effect;
(iii) the estimated costs of environmental remediation set
forth in the Company 10-K represent a reasonable estimate of the
Company's potential exposure for Environmental Liabilities
reasonably likely to be incurred in the next ten years, including
without limitation the costs of remediation or similar
obligations (based on an application of current Environmental
Laws and the use of a remedy reasonably likely to be required
under such Environmental Laws), provided that there will be no
breach of this representation unless the costs of such
environmental remediation exceed such estimate by $5,400,000; and
(iv) there are no Environmental Liabilities that would
reasonably be expected to have a Material Adverse Effect.
(b) There has been no environmental investigation, study, audit,
test, review or other analysis conducted since January 13, 1991 of which the
Company has knowledge in relation to the current or prior business of the
Company or any property or facility now or previously owned or leased by the
Company or any Subsidiary which has not been made available to MergerSub at
least five days prior to the date hereof, except for such investigations,
studies, audits, tests, reviews or analyses which report on conditions and
liabilities that, individually or in the aggregate, would not be reasonably
expected to have a Material Adverse Effect.
(c) For purposes of this Section 3.22 the following terms shall
have the meanings set forth below:
(i) "Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees, codes
and injunctions relating to the effect of the environment on
human health, the environment or to emissions, discharges or
releases of pollutants, contaminants or other hazardous
substances or wastes into the environment, including without
limitation ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants or other hazardous substances or wastes
or the clean-up or other remediation thereof;
(ii) "Environmental Liabilities" means any and all
liabilities of or relating to the Company and any Subsidiary
(including any liability which relates to a predecessor of the
Company or any Subsidiary), whether contingent or fixed, actual
or potential, known or unknown, which (i) arise under or relate
to matters covered by Environmental Laws and (ii) relate to
actions occurring or conditions existing on or prior to the
Effective Time; and
(iii) "Hazardous Substances" means any toxic, radioactive or
otherwise hazardous substance, including petroleum, its
derivatives, by-products and other hydrocarbons, or any substance
having any constituent elements displaying any of the foregoing
characteristics, which in any event is regulated under
Environmental Laws.
Section 3.22. Disclaimer. Except as set forth in this Article
3 or in Section 1.2(d), the Company has not made and shall not be deemed to
have made any representation or warranty, express or implied. Without limiting
the generality of the foregoing, and notwithstanding any otherwise express
representation or warranty made by the Company in Article 3 or Section 1.2(d),
the Company makes no representation or warranty with respect to any
projections, estimates or budgets heretofore delivered to or made available to
MergerSub of future revenues, expenses or expenditures or results of
operations of the Company or any Subsidiaries.
ARTICLE 4
Representations and Warranties of MergerSub
MergerSub represents and warrants to the Company that:
Section 4.1. Corporate Existence and Power. MergerSub is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. Since the date of its
incorporation, MergerSub has not engaged in any activities other than in
connection with or as contemplated by this Agreement and the Merger or in
connection with arranging any financing required to consummate the
transactions contemplated hereby. MergerSub has heretofore delivered to the
Company true and complete copies of MergerSub's certificate of incorporation
and bylaws as currently in effect.
Section 4.2. Corporate Authorization. The execution, delivery
and performance by MergerSub of this Agreement and the consummation by
MergerSub of the transactions contemplated hereby are within the corporate
powers of MergerSub and have been duly authorized by all necessary corporate
action. This Agreement constitutes a valid and binding agreement of MergerSub.
Section 4.3. Governmental Authorization. The execution,
delivery and performance by MergerSub of this Agreement and the consummation by
MergerSub of the transactions contemplated by this Agreement require no action
by or in respect of, or filing with, any governmental body, agency, official
or authority other than (a) the filing of a certificate of merger in
accordance with Delaware Law; (b) compliance with any applicable requirements
of the HSR Act; (c) compliance with any applicable requirements of the
Exchange Act; (d) compliance with the applicable requirements of the
Securities Act; (e) compliance with any applicable foreign or state securities
or Blue Sky laws; (f) any other authorizations required to be obtained
pursuant to applicable foreign statutes, rules or regulations and (g) any
actions or filings that if not taken or made would not have a material adverse
effect on MergerSub.
Section 4.4. Non-Contravention. The execution, delivery and
performance by MergerSub of this Agreement and the consummation by MergerSub
of the transactions contemplated hereby do not and will not (a) contravene or
conflict with the certificate of incorporation or bylaws of MergerSub, (b)
assuming compliance with the matters referred to in Section 4.3, contravene or
conflict with any provision of law, regulation, judgment, order or decree
binding upon MergerSub, or (c) constitute a default under or give rise to any
right of termination, cancellation or acceleration of any right or obligation
of MergerSub or to a loss of any benefit to which MergerSub is entitled under
any agreement, contract or other instrument binding upon MergerSub.
Section 4.5. Disclosure Documents. (a) The information that
MergerSub furnishes to the Company for use in any Company Disclosure Document
will not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading (i) in
the case of the Company Proxy Statement, at the time the Company Proxy
Statement or any amendment or supplement thereto is first mailed to
stockholders of the Company and at the time the stockholders vote on adoption
of this Agreement and the Mergers, and (ii) in the case of any Company
Disclosure Document other than the Company Proxy Statement, at the time of the
filing thereof and at the time of any required distribution thereof.
(b) Each document required to be filed by MergerSub with the SEC
in connection with the Mergers (including the Financing) will, when filed,
comply as to form in all material respects with the applicable requirements of
the Securities Act and the Exchange Act and will not at the time of the filing
thereof, or at the time of the distribution thereof, contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements made therein, in the light of the circumstances under
which they were made, not misleading, provided, that this representation and
warranty will not apply to statements or omissions in such documents based upon
information furnished to MergerSub in writing by the Company specifically for
use therein.
Section 4.6. Finders' Fees. Except for Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), whose fees will be paid by
MergerSub, there is no investment banker, broker, finder or other intermediary
who might be entitled to any fee or commission from MergerSub or any of its
affiliates upon consummation of the transactions contemplated by this
Agreement.
Section 4.7. Financing. The Company has received copies of
(a) a commitment letter dated March 20, 1998 from DLJ Merchant Banking
Partners II, L.P., and certain of its affiliates pursuant to which each of the
foregoing has committed, subject to the terms and conditions set forth therein,
to purchase securities of MergerSub for an aggregate amount equal to
$54,999,997.50, (b) a letter dated March 20, 1998 from DLJ Bridge Finance,
Inc. ("DLJ Bridge Fund") pursuant to which DLJ Bridge Fund has committed,
subject to the terms and conditions set forth therein, to purchase senior
pay-in-kind increasing rate notes of the Company in the amount of $110,000,000
and (c) a commitment letter dated March 20, 1998 from DLJ Capital Funding,
Inc. ("DLJ Senior Debt Fund") pursuant to which DLJ Senior Debt Fund has
committed, subject to the terms and conditions set forth therein, to enter
into one or more credit agreements providing for loans to the corporation
surviving the Reorganization Merger of up to $350,000,000. As used in this
Agreement, the aforementioned entities shall hereinafter be referred to as the
"Financing Entities". The aforementioned credit agreements and commitments to
purchase equity securities of MergerSub shall be referred to as the "Financing
Agreements" and the financing to be provided thereunder shall be referred to
as the "Financing." The aggregate proceeds of the Financing are in an amount
sufficient to pay the Merger Consideration, to repay the Company's and its
Subsidiaries' indebtedness (excluding for this purpose capital lease
obligations) together with any interest, premium or penalties payable in
connection therewith, to provide a reasonable amount of working capital
financing and to pay related fees and expenses (collectively, the "Required
Amounts"). As of the date hereof, none of the commitment letters relating to
the Financing Agreements referred to above has been withdrawn and MergerSub
does not know of any facts or circumstances that may reasonably be expected to
result in any of the conditions set forth in the commitment letters relating
to the Financing Agreements not being satisfied. MergerSub believes that the
Financing will not create any liability to the directors and stockholders of
the Company under any Federal or state fraudulent conveyance or transfer law.
MergerSub further believes that, upon the consummation of the transactions
contemplated hereby, including, without limitation, the Financing, the
Surviving Corporation (i) will not become insolvent, (ii) will not be left
with unreasonably small capital, (iii) will not have incurred debts beyond its
ability to pay such debts as they mature, and (iv) will not have its capital
impaired. MergerSub knows of no reason why the Merger will not be recorded as
a "recapitalization" for financial reporting purposes.
Section 4.8. Capitalization. All outstanding shares of
capital stock of MergerSub have been duly authorized and validly issued and
are fully paid and nonassessable. As of the moment immediately prior to the
Effective Time, 1,235,955 shares of MergerSub Common Stock and MergerSub
Warrants to acquire 111,347 shares of MergerSub Common Stock at an exercise
price of not less than $0.01 per share (which will have been purchased for
aggregate consideration of $54,999,997.50) will be outstanding. Except as set
forth in this Section 4.8, there are outstanding (a) no shares of capital
stock or other voting securities of MergerSub, (b) no securities of MergerSub
convertible into or exchangeable for shares of capital stock or voting
securities of MergerSub, and (c) no options or other rights to acquire from
MergerSub, and no obligation of MergerSub to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of MergerSub (the items in clauses (a), (b) and (c),
together with the MergerSub Common Stock and the MergerSub Warrants, being
referred to collectively as the "MergerSub Securities"). There are no
outstanding obligations of MergerSub to repurchase, redeem or otherwise
acquire any MergerSub Securities.
ARTICLE 5
Covenants of the Company
The Company agrees that:
Section 5.1. Conduct of the Company. Except as otherwise
contemplated by, or provided for, in this Agreement or the Disclosure
Schedule, without the prior written consent of MergerSub (which shall not be
unreasonably withheld), from the date hereof to the Effective Time, the Board
of Directors shall not approve or authorize any action that would allow the
Company and its Subsidiaries to carry on their respective businesses other than
in the ordinary and usual course of business and consistent with past practices
or any action that would prevent the Company and its Subsidiaries from using
their reasonable best efforts to (i) preserve intact its present business
organization, (ii) maintain in effect all material federal, state and local
licenses, approvals and authorizations, including, without limitation, all
material Permits that are required for the Company or any of its Subsidiaries
to carry on their business, (iii) keep available the services of its key
officers and key employees, and (iv) maintain satisfactory relationships with
its material customers, lenders, suppliers and others having material business
relationships with it. Without limiting the generality of the foregoing, and
except as otherwise contemplated by, or provided for, in this Agreement or the
Disclosure Schedule, without the prior written consent of MergerSub (which
shall not be unreasonably withheld), prior to the Effective Time, the Board of
Directors shall not, nor shall it authorize or direct the Company or any
Subsidiary, directly or indirectly, to:
(a) adopt or propose any change in its certificate of
incorporation or bylaws;
(b) except pursuant to existing agreements or arrangements, (i)
acquire (by merger, consolidation, acquisition of stock or assets or
otherwise), directly or indirectly, any material corporation, partnership or
other business organization or division thereof, or sell, lease or otherwise
dispose of a material Subsidiary or a material amount of assets (excluding
sales of inventory) or securities; (ii) waive, release, grant, or transfer any
rights of material value, except in the ordinary course of business,
consistent with past practices; (iii) modify or change in any material respect
any existing material license, lease, contract, or other document, except in
the ordinary course of business, consistent with past practices; (iv) except
to refund or refinance commercial paper or with respect to borrowings in the
ordinary course of business consistent with past practices, incur, assume or
prepay an amount of long-term or short-term debt; (v) assume, guarantee,
endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other person, except in
the ordinary course of business, consistent with past practices; (vi) make any
loans, advances or capital contributions to, or investments in, any other
person, except in the ordinary course of business, consistent with past
practices; or purchase any property or assets of any other individual or
entity, except in the ordinary course of business, consistent with past
practices; (vii) enter into any interest rate, currency or other swap or
derivative transaction, other than in the ordinary course of business,
consistent with past practices, and for bona fide hedging purposes; or (viii)
except for capital expenditures provided for in the Company's 1998 capital
budget, a copy of which has been previously provided to MergerSub, incur any
capital expenditure, individually or in the aggregate, in excess of
$3,000,000.
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its capital stock,
other than cash dividends and distributions by a directly or indirectly wholly
owned Subsidiary of the Company to the Company or a directly or indirectly
wholly owned Subsidiary, or, in the case of a joint venture vehicle pro rata
to all equity owners thereof, or redeem, repurchase or otherwise acquire or
offer to redeem, repurchase, or otherwise acquire any of its securities or any
securities of its Subsidiaries, except pursuant to the Reorganization Merger;
(d) adopt or amend any bonus, profit sharing, compensation,
severance, termination, stock option, pension, retirement, deferred
compensation, employment or employee benefit plan, agreement, trust, plan,
fund or other arrangement for the benefit and welfare of any director, officer
or employee, or increase in any manner the compensation or fringe benefits of
any director, officer or employee or pay any benefit not required by any
existing plan or arrangement (including, without limitation, the granting of
stock options or stock appreciation rights or the removal of existing
restrictions in any benefit plans or agreements), except, in each case, for
normal actions in the ordinary course of business that are consistent with
past practices and that, in the aggregate, do not result in a material
increase in benefits or compensation expense to the Company;
(e) except as required by applicable law or generally accepted
accounting principles, revalue in any material respect any of its assets,
including, without limitation, writing down the value of inventory in any
material manner or write-off of notes or accounts receivable in any material
manner;
(f) pay, discharge or satisfy any material claims, liabilities or
obligations (whether absolute, accrued, asserted or unasserted, contingent or
otherwise) other than the payment, discharge or satisfaction in the ordinary
course of business, consistent with past practices, of liabilities reflected or
reserved against in the consolidated financial statements of the Company or
incurred in the ordinary course of business, consistent with past practices;
(g) make any tax election inconsistent with past practices, or
settle or compromise any material income tax liability;
(h) take any action other than in the ordinary course of business
and consistent with past practices with respect to accounting policies or
procedures; or
(i) agree or commit to do any of the foregoing.
Section 5.2. Stockholder Meeting; Proxy Material. (a) The
Company shall cause a meeting of its stockholders (the "Company Stockholder
Meeting") to be duly called and held as soon as reasonably practicable for the
purpose of voting on the approval and adoption of this Agreement and the
Mergers. The Board of Directors shall, subject to its fiduciary duties as
advised by counsel, recommend approval and adoption by the Company's
stockholders of this Agreement and the Mergers.
(b) In connection with the Company Stockholder Meeting, the
Company (i) will as promptly as practicable prepare and file with the SEC a
Registration Statement on Form S-4 (the "Registration Statement") (which
Registration Statement includes the Company Proxy Statement), will use its
reasonable best efforts to have the Registration Statement declared effective
by the SEC and will thereafter mail to its stockholders as promptly as
practicable the Company Proxy Statement and all other proxy materials for such
meeting, (ii) will use its reasonable best efforts to obtain the necessary
approvals by its stockholders of this Agreement, the Mergers and the
transactions contemplated hereby and (iii) will otherwise comply with all
legal requirements applicable to such meeting.
Section 5.3. Access to Information. From the date hereof
until the Effective Time, the Company will give MergerSub, its counsel,
financial advisors, auditors and other authorized representatives full access
to the offices, properties, books and records of the Company and the
Subsidiaries (so long as such access does not unreasonably interfere with the
operations of the Company and the Subsidiaries), will furnish to MergerSub,
their counsel, financial advisors, auditors and other authorized
representatives such financial and operating data and other information as
such Persons may reasonably request and will instruct the Company's employees,
counsel and financial advisors to cooperate with MergerSub in its
investigation of the business of the Company and the Subsidiaries; provided
that no investigation pursuant to this Section 5.3 shall affect any
representation or warranty given by the Company to MergerSub hereunder; and
provided, further that (i) any information provided to MergerSub pursuant to
this Section 5.3 shall be subject to the Confidentiality Agreement dated as of
February 16, 1998 between the Company and DLJ Merchant Banking II, Inc. (the
"Confidentiality Agreement") and (ii) none of the Company or any other Persons
covered by this Section 5.3 shall be obligated to furnish any information
under this Section 5.3 if doing so would, on the basis of advice from the
Company's counsel, result in the loss of attorney-client privilege in favor of
the Company or a Subsidiary or violate the terms of any contract, so long as
the Company informs MergerSub of its decision to withhold such information and
furnishes a description of such information that is consistent with the
preservation of such privilege or compliance with such agreement, as
applicable.
Section 5.4. Other Offers. (a) Neither the Company nor any of
its Subsidiaries shall (whether directly or indirectly through advisors,
agents or other intermediaries), nor shall the Company or any of its
Subsidiaries authorize or permit any of its or their officers, directors,
agents, representatives, advisors or Subsidiaries to (A) solicit, initiate or
take any action knowingly to facilitate the submission of inquiries, proposals
or offers from any Third Party (as defined below) (other than MergerSub)
relating to (i) any acquisition or purchase of 20% or more of the consolidated
assets of the Company and its Subsidiaries or of over 20% of any class of
equity securities of the Company or any of its Subsidiaries whose assets,
individually or in the aggregate, constitute more than 20% of the consolidated
assets of the Company, (ii) any tender offer (including a self tender offer)
or exchange offer that if consummated would result in any Third Party
beneficially owning 20% or more of any class of equity securities of the
Company or any of its Subsidiaries whose assets, individually or in the
aggregate, constitute more than 20% of the consolidated assets of the Company,
(iii) any merger, consolidation, business combination, sale of substantially
all assets, recapitalization, liquidation, dissolution or similar transaction
involving the Company or any of its Subsidiaries whose assets, individually or
in the aggregate, constitute more than 20% of the consolidated assets of the
Company other than the transactions contemplated by this Agreement, or (iv)
any other transaction the consummation of which would or could reasonably be
expected to impede, interfere with, prevent or materially delay the Mergers
(collectively, "Acquisition Proposals"), or agree to or endorse any
Acquisition Proposal, (B) enter into or participate in any discussions or
negotiations regarding any of the foregoing, or furnish to any Third Party any
information with respect to its business, properties or assets in order to
facilitate or encourage any effort or attempt by any Third Party (other than
MergerSub) to do or seek any of the foregoing, or otherwise cooperate in any
way with, or knowingly assist or participate in, facilitate or encourage, any
effort or attempt by any Third Party (other than MergerSub) to do or seek any
of the foregoing, or (C) grant any waiver or release under any standstill or
similar agreement with respect to any class of equity securities of the
Company or any of its Subsidiaries; provided, however, that the foregoing
shall not prohibit the Company (either directly or indirectly through advisors,
agents or other intermediaries) from (i) furnishing information pursuant to an
appropriate confidentiality letter (which letter shall not be less favorable
to the Company in any material respect than the Confidentiality Agreement, and
a copy of which shall be provided for informational purposes only to MergerSub
with the name of the other party redacted) concerning the Company and its
businesses, properties or assets to a Third Party who has made a bona fide
Acquisition Proposal, (ii) engaging in discussions or negotiations with a Third
Party who has made a bona fide Acquisition Proposal, (iii) following receipt of
a bona fide Acquisition Proposal, taking and disclosing to its stockholders a
position contemplated by Rule 14e-2(a) or Rule 14d-9 under the Exchange Act
or otherwise making disclosure to its stockholders, (iv) following receipt of a
bona fide Acquisition Proposal, failing to make or withdrawing or modifying
its recommendation referred to in Section 5.2 and/or (v) taking any
non-appealable, final action ordered to be taken by the Company by any court of
competent jurisdiction, but in each case referred to in the foregoing clauses
(i) through (iv) only to the extent that the Board of Directors shall have
concluded in good faith on the basis of advice from outside counsel that the
failure to take such action would result in a breach of the fiduciary duties
of the Board of Directors to the stockholders of the Company under applicable
law; provided, further, that (A) the Board of Directors shall not take any of
the foregoing actions referred to in clauses (i) through (iv) until after
reasonable notice to MergerSub with respect to such action, and (B) if the
Board of Directors receives an Acquisition Proposal, to the extent it may do
so without breaching its fiduciary duties as advised by counsel and as
determined in good faith and without violating any of the conditions of such
Acquisition Proposal, then the Company shall promptly inform MergerSub of the
terms and conditions of such proposal and the identity of the person making
it. The Company will immediately cease and cause its advisors, agents and
other intermediaries to cease any and all existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any of the
foregoing, and shall use its reasonable best efforts to cause any such parties
in possession of confidential information about the Company that was furnished
by or on behalf of the Company to return or destroy all such information in
the possession of any such party or in the possession of any agent or advisor
of any such party. As used in this Agreement, the term "Third Party" means
any person, corporation, entity or "group," as defined in Section 13(d) of the
Exchange Act, other than MergerSub or any of its affiliates.
(b) If a Payment Event (as hereinafter defined) occurs, the Company
shall pay to MergerSub, within two business days following such Payment Event,
a fee of $6,000,000.
(c) "Payment Event" means (w) the termination of this Agreement
pursuant to Section 9.1(e); (x) the termination of this Agreement pursuant to
Section 9.1(f) in contemplation of a merger agreement or a tender or exchange
offer or any transaction of the type listed in clause (z) below, on terms more
favorable to the Company's stockholders from a financial point of view than
the Merger; (y) the termination of this Agreement by MergerSub pursuant to
Section 9.1(c) but only if the breach of covenant or warranty or
misrepresentation in question arises out of the bad faith or wilful misconduct
of the Company; or (z) the occurrence of any of the following events within
12 months of the termination of this Agreement pursuant to Section 9.1(g)
whereby stockholders of the Company receive, pursuant to such event, cash,
securities or other consideration having an aggregate value, when taken
together with the value of any securities of the Company or its Subsidiaries
otherwise held by the stockholders of the Company after such event, in excess
of $44.50 per Share: the Company is acquired by merger or otherwise by a
Third Party; a Third Party acquires more than 50% of the total assets of the
Company and its Subsidiaries, taken as a whole; a Third Party acquires more
than 50% of the outstanding Shares or the Company adopts and implements a plan
of liquidation, recapitalization or share repurchase relating to more than 50%
of the outstanding Shares or an extraordinary dividend relating to more than
50% of the outstanding Shares or 50% of the assets of the Company and its
Subsidiaries, taken as a whole.
(d) Upon (i) the occurrence of a Payment Event, or (ii) a
termination by MergerSub that follows a failure of the conditions set forth in
Sections 8.1(a) or 8.2(g) to be satisfied, the Company shall reimburse
MergerSub and its affiliates not later than two business days after submission
of reasonable documentation thereof for 100% of their out-of-pocket fees and
expenses (including the reasonable fees and expenses of their counsel and fees
payable to the financing entities and their respective counsel) up to
$5,000,000, in each case, actually incurred by any of them or on their behalf
in connection with this Agreement and the transactions contemplated hereby.
(e) The Company acknowledges that the agreements contained in this
Section 5.4 are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, MergerSub would not enter into
this Agreement; accordingly, if the Company fails to promptly pay any amount
due pursuant to this Section 5.4, and, in order to obtain such payment, the
other party commences a suit which results in a judgment against the Company
for the fee or fees and expenses set forth in this Section 5.4, the Company
shall also pay to MergerSub its costs and expenses incurred in connection with
such litigation.
(f) Section 5.4(b)-(e) shall survive any termination of this
Agreement, however caused.
Section 5.5. Resignation of Directors. Immediately prior to
the Effective Time, the Company and ExistingSub shall deliver to MergerSub
evidence satisfactory to MergerSub of the resignation of all directors of the
Company and ExistingSub (in each case other than Robert L. Smialek) effective
at the Effective Time.
Section 5.6. Solvency Opinion. The Company shall request an
independent advisor to deliver the opinion contemplated by Section 8.3(b) as
promptly as practicable.
Section 5.7. Transfers by Affiliates. The Company shall use
its reasonable best efforts to obtain and provide to MergerSub prior to the
Effective Time undertakings in writing from each Person, if any, who according
to counsel for the Company might reasonably be considered "affiliates" of the
Company within the meaning of Rule 145(c) of the SEC pursuant to the
Securities Act (each, a "Rule 145 Affiliate"), in each case in form and
substance reasonably satisfactory to counsel for MergerSub providing (i) such
Rule 145 Affiliate will notify MergerSub in writing before offering for sale
or selling or otherwise disposing of any Shares or ExistingSub Shares owned by
such Rule 145 Affiliate and (ii) no such sale or other disposition shall be
made unless and until the Rule 145 Affiliate has supplied to MergerSub an
opinion of counsel for the Rule 145 Affiliate (which opinion shall be
reasonably satisfactory to MergerSub) to the effect that such transfer is not
in violation of the Securities Act.
ARTICLE 6
Covenants of MergerSub
MergerSub agrees that:
Section 6.1. Voting of Shares. MergerSub agrees to vote all
Shares beneficially owned by it in favor of adoption of this Agreement at the
Company Stockholder Meeting.
Section 6.2. Director and Officer Liability. The Surviving
Corporation shall cause the Company to do the following and the Company hereby
agrees to do the following:
(a) The Company shall indemnify and hold harmless the present and
former officers and directors of the Company or any of its Subsidiaries (each
an "Indemnified Person") in respect of acts or omissions or alleged acts or
omissions occurring at or prior to the Effective Time to the fullest extent
permitted from time to time by Delaware Law or any other applicable laws as
presently or hereafter in effect or provided under the Company's certificate of
incorporation and bylaws in effect on the date hereof.
(b) The Company shall pay on an as-incurred basis the reasonable
fees and expenses of such Indemnified Person (including fees and expenses of
counsel) in advance of the final disposition of any action, suit, proceeding or
investigation that is the subject of the right to indemnification, subject to
reimbursement in the event such Indemnified Person is not entitled to
indemnification.
(c) The certificate of incorporation and bylaws of the Company
shall contain the provisions providing for exculpation of director and officer
liability and indemnification on the same basis as set forth in the Company's
certificate of incorporation and bylaws in effect on the date hereof. For a
period of six years after the Effective Time, the Company shall maintain in
effect such provisions in the certificate of incorporation and bylaws of the
Company providing for exculpation of director and officer liability and
indemnification to the fullest extent permitted from time to time under
Delaware Law, which provisions shall not be amended except as required by
applicable law or except to make changes permitted by applicable law that
would enlarge the scope of the Indemnified Parties' indemnification rights
thereunder.
(d) The Company shall pay all expenses, including attorneys' fees,
that may be incurred by an Indemnified Person in enforcing the indemnity and
other obligations provided for in this Section 6.02. In the event of any
action, suit, investigation or proceeding, the Indemnified Party shall be
entitled to control the defense thereof with counsel of its own choosing
reasonably acceptable to the Company and the Company shall cooperate in the
defense thereof, provided however that the Company shall not be liable for the
fees of more than one counsel for all Indemnified Parties, other than local
counsel, unless a conflict of interest shall be caused thereby and provided
further that the Company shall not be liable for any settlement effected
without its written consent (which consent shall not be unreasonably
withheld).
(e) For a period of six years after the Effective Time, the
Company shall provide officers' and directors' liability insurance in
respect of acts or omissions occurring at or prior to the Effective Time
covering each such Person currently covered by the Company's officers' and
directors' liability insurance policy on terms with respect to coverage and
amount no less favorable than those of such policy in effect on the date
hereof, provided that in satisfying its obligation under this Section
6.2(e), the Company shall not be obligated to pay premiums in excess of
150% of the amount per annum the Company paid in its last full fiscal year,
which amount has been disclosed to MergerSub.
(f) The rights of each Indemnified Party hereunder shall be in
addition to any other rights such Indemnified Party may have under the
certificate of incorporation or bylaws of the Company or the Surviving
Corporation or any of its Subsidiaries, under Delaware Law or otherwise.
Notwithstanding anything to the contrary contained in this Agreement or
otherwise, the provisions of this Section 6.02 shall survive the
consummation of the Merger, and each Indemnified Person shall, for all
purposes, be a third party beneficiary of the covenants and agreements
contained in this Section 6.02 and, accordingly, shall be treated as a
party to this Agreement for purposes of the rights and remedies relating to
enforcement of such covenants and agreements and shall be entitled to
enforce any such rights and exercise any such remedies directly against
MergerSub, the Surviving Corporation and the Company.
Section 6.3. Employee Plans and Benefit Arrangements. (a)
From and after the Effective Time, subject to applicable law, the Surviving
Corporation shall cause the Company and its Subsidiaries to, and the
Company and its Subsidiaries shall, honor the obligations of the Company
and its Subsidiaries incurred prior to the Effective Time under all
existing Employee Plans, Benefit Arrangements and International Plans.
(b) The Surviving Corporation agrees that, for at least one year
from the Effective Time, subject to applicable law, the Surviving Corporation
shall cause the Company and its Subsidiaries to, and the Company and its
Subsidiaries shall, provide benefits to their employees which will, in the
aggregate, be comparable to those currently provided by the Company and its
Subsidiaries to their employees. Notwithstanding the foregoing, nothing herein
shall obligate or require the Company or any of its Subsidiaries to provide its
employees with a plan or arrangement similar to the stock option or any other
equity-based compensation plans currently maintained by the Company and
nothing herein shall limit the Company's right to amend, modify or terminate
any particular Employee Plan or Benefit Arrangement.
(c) After the Effective Time, the Surviving Corporation shall cause
the Company to, and the Company shall, grant to all individuals who are, as
of the Effective Time, employees of the Company or any of its Subsidiaries
credit for all service with the Company, any of its present and former
Subsidiaries, any other affiliate of the Company and their respective
predecessors (collectively, the "Insilco Affiliated Group") prior to the
Effective Time for purposes of vesting, participation, eligibility for benefit
commencement and benefit accrual (but without any duplication of benefits in
any such case). Any Benefit Arrangements or International Plans which
provide medical, dental or life insurance benefits after the Effective Time to
any individual who is a current or former employee of the Insilco Affiliated
Group as of the Effective Time (an "Employee") or a dependent of an Employee
(a "Dependent") shall, with respect to such individuals, waive any waiting
periods and any pre-existing conditions and actively-at-work exclusions to the
extent so waived under present policy and shall provide that any expenses
incurred on or before the Effective Time by such individuals shall be taken
into account under such plans for purposes of satisfying applicable deductible
or coinsurance provisions to the extent taken into account under present
policy.
Section 6.4. Financing. MergerSub shall use its reasonable
best efforts to obtain the Financing (including satisfying the conditions
thereto). In the event that any portion of such Financing becomes
unavailable, regardless of the reason therefor, MergerSub will use its
reasonable best efforts to obtain alternative financing on substantially
comparable or more favorable terms from other sources.
Section 6.5. NASDAQ Listing. The Surviving Corporation will not
take any action, for at least three years after the Effective Time, to cause
the Surviving Corporation Shares to be de-listed from, or fail to meet any of
the listing standards of, the NASDAQ National Market ("NASDAQ"); provided,
however, that the Surviving Corporation may cause or permit the Surviving
Corporation Shares to be de-listed in connection with a transaction (other than
the Merger) which results in the termination of registration of such securities
under Section 12 of the Exchange Act, and provided, further, that nothing in
this Section 6.5 shall require the Surviving Corporation to take any
affirmative action to prevent the Surviving Corporation Shares from being
de-listed by NASDAQ if the Surviving Corporation Shares cease to meet the
applicable listing standards. For at least three years after the Effective
Time, the Surviving Corporation shall make available the information required
pursuant to Rule 144(c) of the Securities Act.
ARTICLE 7
Covenants of MergerSub and the Company
The parties hereto agree that:
Section 7.1. Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, each party will use its reasonable best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement, including
delivering such documents relating to corporate existence and authority as the
other parties may reasonably request. Each party shall also refrain from
taking, directly or indirectly, any action contrary to or inconsistent with the
provisions of this Agreement, including action which would impair such party's
ability to consummate the Mergers and the other transactions contemplated
hereby. Without limiting the foregoing, the Company and the Board of
Directors shall use their reasonable best efforts to (a) take all action
necessary so that no state takeover statute or similar statute or regulation
is or becomes applicable to the Mergers or any of the other transactions
contemplated by this Agreement and (b) if any state takeover statute or similar
statute or regulation becomes applicable to any of the foregoing, take all
action necessary so that the Mergers and the other transactions contemplated
by this Agreement may be consummated as promptly as practicable on the terms
contemplated by this Agreement and otherwise to minimize the effect of such
statute or regulation on the Mergers and the other transactions contemplated by
this Agreement.
Section 7.2. Certain Filings. (a) The Company and MergerSub
shall use their respective reasonable best efforts to take or cause to be
taken, (i) all actions necessary, proper or advisable by such party with
respect to the prompt preparation and filing with the SEC the Registration
Statement and the other Company Disclosure Documents, (ii) such actions as may
be required to have the Registration Statement declared effective under the
Securities Act and to have the Company Proxy Statement cleared by the SEC, in
each case as promptly as practicable, and (iii) such actions as may be
required to be taken under state securities or applicable Blue Sky laws in
connection with the issuance of the securities contemplated hereby.
(b) The Company agrees to provide, and will cause its Subsidiaries
and its and their respective officers, employees and advisors to provide, all
necessary cooperation in connection with the arrangement of any financing to
be consummated contemporaneous with or at or after the Effective Time in
respect of the transactions contemplated by this Agreement, including without
limitation, (x) participation in meetings, due diligence sessions and road
shows, (y) the preparation of offering memoranda, private placement memoranda,
prospectuses and similar documents, and (z) the execution and delivery of any
commitment letters, underwriting or placement agreements, pledge and security
documents, other definitive financing documents, or other requested
certificates or documents, including comfort letters of accountants and legal
opinions relating to the Company as may be reasonably requested by MergerSub
and as are customarily provided in similar transactions; provided that the
form and substance of any of the material documents referred to in clause (y),
and the terms and conditions of any of the material agreements and other
documents referred to in clause (z), shall be substantially consistent with
the terms and conditions set forth in the commitment letters referred to in
Section 4.7.
(c) The Company and MergerSub shall cooperate with one another (i)
in determining whether any action by or in respect of, or filing with, any
governmental body, agency or official, or authority is required, or any
actions, consents, approvals or waivers are required to be obtained from
parties to any material contracts, in connection with the consummation of the
transactions contemplated by this Agreement and (ii) in seeking any such
actions, consents, approvals or waivers or making any such filings, furnishing
information required in connection therewith or with the Company Disclosure
Documents and seeking to obtain any such actions, consents, approvals or
waivers in a timely manner.
Section 7.3. Public Announcements. MergerSub and the Company
will consult with each other before issuing any press release or making any
public statement with respect to this Agreement and the transactions
contemplated hereby and, except for any press release or public statement as
may be required by applicable law or any listing agreement with any national
securities exchange or NASDAQ, will not issue any such press release or make
any such public statement prior to such consultation.
Section 7.4. Further Assurances. At and after the Effective
Time, the officers and directors of the Surviving Corporation will be
authorized to execute and deliver, in the name and on behalf of the Company or
MergerSub, any deeds, bills of sale, assignments or assurances and to take and
do, in the name and on behalf of the Company or MergerSub, any other actions
and things to vest, perfect or confirm of record or otherwise in the Surviving
Corporation any and all right, title and interest in, to and under any of the
rights, properties or assets of the Company acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Mergers.
Section 7.5. Reserved Shares. The Surviving Corporation shall
cause the Company to, and the Company shall, honor the provisions of the
Bankruptcy Order and all agreements made pursuant thereto with respect to the
issuance of the Reserved Shares, except that in lieu of issuing any Reserved
Shares, payment shall be made in cash in an amount equal to $44.50 multiplied
by the aggregate number of Reserved Shares which otherwise would become
issuable pursuant to the provisions of the Bankruptcy Order.
Section 7.6. Notices of Certain Events. Each of the parties
hereto shall promptly notify the other parties of:
(a) the receipt by such party of any material written notice or
other material communication from any Person alleging that the consent of such
Person is or may be required in connection with the transactions contemplated
by this Agreement;
(b) the receipt by such party of any material written notice or
other material communication from any governmental or regulatory agency or
authority in connection with the transactions contemplated by this Agreement;
(c) actual knowledge by such party of any actions, suits, claims,
investigations or proceedings commenced or, to the knowledge of such party
threatened against such party or any of its Affiliates which, if pending on the
date of this Agreement, would have been required to have been disclosed
pursuant to Section 3.12 or which relate to the consummation of the
transactions contemplated by this Agreement; and
(d) actual knowledge by such party of (i) the occurrence, or
failure to occur, of any event that has caused any of its representations or
warranties hereunder to be untrue or inaccurate in any material respect at any
time from the date hereof to the Effective Time and (ii) the failure by it to
comply with or satisfy in any material respect any covenant, condition or
agreement to be complied with or satisfied by it under this Agreement.
ARTICLE 8
Conditions to the Merger
Section 8.1. Conditions to the Obligations of Each Party. The
obligations of the Company and MergerSub to consummate the Mergers are subject
to the satisfaction of the following conditions:
(a) This Agreement and the Mergers shall have been adopted by a
majority of the outstanding Shares as of the record date of the Company
Stockholder Meeting.
(b) Any applicable waiting period under the HSR Act relating to the
Merger shall have expired or been terminated;
(c) No provision of any applicable law or regulation and no
judgment, order, decree or injunction shall prohibit or restrain the
consummation of the Merger; provided, however, that the Company and MergerSub
shall each use its reasonable best efforts to have any such judgment, order,
decree or injunction vacated;
(d) All consents, approvals and licenses of any governmental or
other regulatory body required in connection with the execution, delivery and
performance of this Agreement and for the Company and its Subsidiaries to
conduct their business in substantially the manner now conducted, shall have
been obtained, unless the failure to obtain such consents, authorizations,
orders or approvals would not have a Material Adverse Effect after giving
effect to the transactions contemplated by this Agreement (including the
Financing); and
(e) The Registration Statement shall have been declared effective
and no stop order suspending the effectiveness of the Registration Statement
shall be in effect and no proceedings for such purpose shall be pending before
or threatened by the SEC.
Section 8.2. Conditions to the Obligations of MergerSub. The
obligations of MergerSub to consummate the Merger are subject to the
satisfaction of the following further conditions:
(a) The Company shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior to the
Effective Time, the representations and warranties of the Company contained
in this Agreement shall be true in all material respects at and as of the
Effective Time (provided that representations made as of a specific date shall
be required to be true as of such date only) as if made at and as of such time
(except as contemplated by this Agreement) and MergerSub shall have received a
certificate signed by an executive officer of the Company to the foregoing
effect. The parties agree that the Reorganization Merger shall not be deemed
to have occurred for the purposes of determining the satisfaction of this
Section 8.2(a) as to the representations and warranties of the Company covered
by this Section 8.2(a) and following the Reorganization Merger, ExistingSub
will take no actions, incur no liabilities, enter into no agreements or
otherwise engage in any business except as necessary to consummate the Merger
and the Financing;
(b) There shall not be pending (x) any action or proceeding against
the Company or any Subsidiary by any government or governmental authority or
agency or (y) any action or proceeding against the Company or any Subsidiary
by any other person, in either case before any court or governmental authority
or agency that has a reasonable likelihood of success, challenging or seeking
to make illegal, to delay materially or otherwise directly or indirectly to
restrain or prohibit the consummation of the Merger or seeking to obtain
material damages or otherwise directly or indirectly relating to the
transactions contemplated by this Agreement, seeking to restrain or prohibit
MergerSub's (including its Subsidiaries and affiliates) ownership or operation
of all or any material portion of the business or assets of the Company and
its Subsidiaries, taken as a whole, or to compel MergerSub or any of its
Subsidiaries or affiliates to dispose of or hold separate all or any material
portion of the business or assets of the Company and its Subsidiaries, taken
as a whole, seeking to impose or confirm material limitations on the ability
of MergerSub or any of its Subsidiaries or affiliates to effectively control
the business or operations of the Company and its Subsidiaries, taken as a
whole, or effectively to exercise full rights of ownership of the Shares,
including, without limitation, the right to vote any Shares acquired or owned
by MergerSub or any of its Subsidiaries or affiliates on all matters properly
presented to the Company's stockholders, or seeking to require divestiture by
MergerSub or any of its Subsidiaries or affiliates of any Shares, and no court,
arbitrator or governmental body, agency or official shall have issued any
judgment, order, decree or injunction, and there shall not be any statute, rule
or regulation, that, in the reasonable judgment of MergerSub is likely,
directly or indirectly, to result in any of the consequences referred to in
this paragraph (b);
(c) The Reorganization Merger shall have occurred as contemplated
by Section 1.1;
(d) The funds in an amount at least equal to the Required Amounts
shall have been made available to MergerSub and/or the Company as contemplated
in Section 4.7;
(e) The holders of not more than 6% of the outstanding Shares shall
have demanded appraisal of their Shares in accordance with Delaware Law;
(f) MergerSub shall be reasonably satisfied that the Merger will be
recorded as a "recapitalization" for financial reporting purposes; and
(g) Total indebtedness (long- and short-term) of the Company and
its Subsidiaries immediately preceding the Reorganization Effective Time shall
not exceed $290,000,000 (excluding capital leases).
Section 8.3. Conditions to the Obligations of the Company and
ExistingSub. The obligation of the Company to consummate the Reorganization
Merger and the obligation of ExistingSub to consummate the Merger are subject
to the satisfaction of the following further conditions:
(a) MergerSub shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to the
Effective Time, the representations and warranties of MergerSub contained in
this Agreement and in any certificate or other writing delivered by it pursuant
hereto shall be true in all material respects at and as of the Effective Time
(provided that representations made as of a specific date shall be required to
be true as of such date only) as if made at and as of such time and the Company
shall have received a certificate signed by an executive officer of MergerSub
to the foregoing effect.
(b) The Board of Directors shall have received an opinion,
addressed and reasonably satisfactory to it, from an independent advisor
confirming the belief of MergerSub set forth in the second to last sentence of
Section 4.7.
ARTICLE 9
Termination
Section 9.1. Termination. This Agreement may be terminated
and the Merger may be abandoned at any time prior to the Effective Time
(notwithstanding any approval of this Agreement by the stockholders of the
Company):
(a) by mutual written consent of the Company on the one hand and
MergerSub on the other hand;
(b) by either the Company or MergerSub, if the Merger has not been
consummated by September 30, 1998, provided that the party seeking to exercise
such right is not then in breach in any material respect of any of its
obligations under this Agreement;
(c) by either the Company or MergerSub, if MergerSub (in the case
of termination by the Company), or the Company (in the case of termination by
MergerSub) shall have breached in any material respect any of its obligations
under this Agreement or any representation and warranty of MergerSub (in the
case of termination by the Company) or the Company (in the case of termination
by MergerSub) shall have been incorrect in any material respect when made or
at any time prior to the Effective Time (unless such breach or failure to be
correct shall be capable of correction and, in such case, the breaching party
shall promptly effect such correction);
(d) by either the Company or MergerSub, if there shall be any law
or regulation that makes consummation of the Merger illegal or otherwise
prohibited or if any judgment, injunction, order or decree enjoining MergerSub
or the Company from consummating the Merger is entered and such judgment,
injunction, order or decree shall become final and nonappealable;
(e) by MergerSub if the Board of Directors shall have withdrawn or
modified or amended, in a manner adverse to MergerSub, its approval or
recommendation of this Agreement and the Mergers or its recommendation that
stockholders of the Company adopt and approve this Agreement and the Mergers,
or approved, recommended or endorsed any proposal for a transaction other than
the Mergers (including a tender or exchange offer for Shares) or if the
Company has failed to call the Company Stockholders Meeting or failed as
promptly as practicable after the Registration Statement is declared effective
by the SEC to mail the Company Proxy Statement to its stockholders or failed
to include in such statement the recommendation referred to above;
(f) by the Company if prior to the Effective Time the Board of
Directors shall have withdrawn or modified or amended, in a manner adverse to
MergerSub, its approval or recommendation of this Agreement and the Mergers or
its recommendation that stockholders of the Company adopt and approve this
Agreement and the Mergers in order to permit the Company to execute a
definitive agreement providing for the acquisition of the Company or in order
to approve a tender or exchange offer for any or all of the Shares, in either
case, that is determined by the Board of Directors to be on terms more
favorable from a financial point of view to the Company's stockholders than
the Mergers, provided that the Company shall be in compliance with Section
5.4; and
(g) by either the Company or MergerSub if, at a duly held
stockholders meeting of the Company or any adjournment thereof at which this
Agreement and the Mergers are voted upon, the requisite stockholder adoption
and approval shall not have been obtained.
The party desiring to terminate this Agreement pursuant to
Sections 9.01(b)-(g) shall give written notice of such termination to the
other party in accordance with Section 10.1.
Section 9.2. Effect of Termination. If this Agreement is
terminated pursuant to Section 9.1, this Agreement shall become void and of no
effect with no liability on the part of any party hereto, except that the
agreements contained in clause (i) of Section 5.3, Sections 5.4(b)-(e) and
10.4 shall survive the termination hereof. Notwithstanding the foregoing,
nothing in this Section 9.2 shall relieve any party to this Agreement of
liability for a breach of any of its covenants or agreements contained in this
Agreement.
ARTICLE 10
Miscellaneous
Section 10.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopy
or similar writing) and shall be given,
if to MergerSub, to:
Thompson Dean
C/O DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, New York 10172
Telecopy: 212-892-7552
with a copy to:
John W. Buttrick
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telecopy: (212) 450-4800
if to the Company, to:
General Counsel
Insilco Corporation
425 Metro Place North
5th Floor
Dublin, Ohio 43017
Telecopy: (614) 791-3195
with a copy to:
Aviva Diamant
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
Telecopy: (212) 859-4000
or such other address or telecopy number as such party may hereafter specify
for the purpose by notice to the other parties hereto. Each such notice,
request or other communication shall be effective (a) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified in this
Section 10.1 and the appropriate telecopy confirmation is received or (b) if
given by any other means, when delivered at the address specified in this
Section 10.1.
Section 10.2. Survival of Representations and Warranties. The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall not survive the Effective Time.
Section 10.3. Amendments; No Waivers. (a) Any provision of
this Agreement may be amended or waived prior to the Effective Time if, and
only if, such amendment or waiver is in writing and signed, in the case of an
amendment, by Insilco, ExistingSub and MergerSub or in the case of a waiver,
by the party against whom the waiver is to be effective; provided that after
the adoption of this Agreement and the Mergers by the stockholders of the
Company, no such amendment or waiver shall, without the further approval of
such stockholders, alter or change the amount or kind of consideration to be
received in exchange for ExistingSub Shares, any term of the certificate of
incorporation of the Surviving Corporation or any of the terms or conditions of
this Agreement if such alteration or change would adversely affect the holders
of any ExistingSub Shares.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
Section 10.4. Expenses. Except as provided in Section 5.4,
all costs and expenses incurred in connection with this Agreement shall be
paid by the party incurring such cost or expense. Notwithstanding anything
herein to the contrary, including without limitation, Sections 7.01 and 7.02,
prior to the Effective Time, neither the Company nor ExistingSub shall be
required to execute any document unless it would have no liability or
obligation thereunder or with respect thereto in the event the transactions
contemplated hereby are not consummated.
Section 10.5. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto, except that
MergerSub may make such an assignment to any wholly owned subsidiary without
such consent.
Section 10.6. Governing Law. This Agreement shall be
construed in accordance with and governed by the internal laws of the State of
Delaware.
Section 10.7. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
Section 10.8. Third Party Beneficiaries. Except for Section
6.2, no provision of this Agreement is intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder.
Section 10.9. Entire Agreement. Except for the Confidentiality
Agreement and the Voting Agreement, this Agreement and the exhibits and
schedules attached hereto and thereto constitute the entire agreement between
the parties with respect to the subject matter of this Agreement and supersede
all prior agreements and understandings, both oral and written, between the
parties with respect to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
INSILCO CORPORATION
By: /s/ Robert L. Smialek
------------------------------------
Name: Robert L. Smialek
Title: President, Chief Executive
Officer and Director
INR HOLDING CO.
By: /s/ Kenneth H. Koch
------------------------------------
Name: Kenneth H. Koch
Title: Vice President and General
Counsel
SILKWORM ACQUISITION CORPORATION
By: /s/ William F. Dawson
------------------------------------
Name: William F. Dawson
Title: Vice President and Secretary
EXHIBIT A
FIRST: The name of the Corporation is Insilco Holding
Corporation.
SECOND: The address of its registered office in the State of
Delaware is 1013, Centre Road, Wilmington, Delaware 19805. The name of its
registered agent at such address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended ("Delaware Law").
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 15,000,000, consisting of
15,000,000 shares of Common Stock, par value $0.001 per share.
FIFTH: The Board of Directors shall have the power to adopt,
amend or repeal the bylaws of the Corporation.
SIXTH: Election of directors need not be by written ballot
unless the bylaws of the Corporation so provide.
SEVENTH: (1) A director of the Corporation shall not be
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director to the fullest extent permitted by
Delaware Law.
(2) (a) Each person (and the heirs, executors or
administrators of such person) who was or is a party or is threatened to be
made a party to, or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by Delaware
Law. The right to indemnification conferred in this ARTICLE SEVENTH shall
also include the right to be paid by the Corporation the expenses incurred
in connection with any such proceeding in advance of its final disposition
to the fullest extent authorized by Delaware Law. The right to
indemnification conferred in this ARTICLE SEVENTH shall be a contract
right.
(b) The Corporation may, by action of its Board of
Directors, provide indemnification to such of the officers, employees and
agents of the Corporation to such extent and to such effect as the Board of
Directors shall determine to be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss incurred by such person in any such
capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under Delaware Law,
(4) The rights and authority conferred in this ARTICLE
SEVENTH shall not be exclusive of any other right which any person may
otherwise have or hereafter acquire.
(5) Neither the amendment nor repeal of this ARTICLE
SEVENTH, nor the adoption of any provision of this Certificate of
Incorporation or bylaws of the Corporation, nor, to the fullest extent
permitted by Delaware Law, any modification of law, shall eliminate or
reduce the effect of this ARTICLE SEVENTH in respect of any acts or
omissions occurring prior to such amendment, repeal, adoption or
modification.
EIGHTH: The Corporation reserves the right to amend this
Certificate of Incorporation in any manner permitted by Delaware Law and,
with the sole exception of those rights and powers conferred under the
above ARTICLE SEVENTH, all rights and powers conferred herein on
stockholders, directors and officers, if any, are subject to this reserved
power.
EXHIBIT 99.4
SUBSCRIPTION AGREEMENT
dated as of
August 17, 1998
among
SILKWORM ACQUISITION CORPORATION
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
Common Stock
of
Silkworm Acquisition Corporation
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale...............................................3
SECTION 2.02. Closing.........................................................3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF MERGERSUB
SECTION 3.01. Corporate Existence and Power...................................4
SECTION 3.02. Corporate Authorization.........................................4
SECTION 3.03. Governmental Authorization......................................4
SECTION 3.04. Noncontravention................................................5
SECTION 3.05. Capitalization and Voting Rights................................5
SECTION 3.06. Valid Issuance of Securities....................................5
SECTION 3.07. Litigation......................................................6
SECTION 3.08. Newly Formed Corporation........................................6
SECTION 3.09. Meaning of MergerSub............................................6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
SECTION 4.01. Existence and Power.............................................7
SECTION 4.02. Authorization...................................................7
SECTION 4.03. Governmental Authorization......................................7
SECTION 4.04. Purchase for Investment.........................................7
SECTION 4.05. Private Placement...............................................7
SECTION 4.06. Litigation......................................................8
SECTION 4.07. Brokers or Finders' Fees........................................9
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Each Buyer and MergerSub...........9
SECTION 5.02. Additional Conditions to Obligation of Each Buyer...............9
SECTION 5.03. Additional Conditions to Obligation of MergerSub...............10
ARTICLE 6
SURVIVAL; INDEMNIFICATION
SECTION 6.01. Survival.......................................................10
SECTION 6.02. Indemnification................................................10
SECTION 6.03. Exclusivity....................................................11
ARTICLE 7
TERMINATION
SECTION 7.01. Grounds for Termination........................................11
SECTION 7.02. Effect of Termination..........................................11
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices........................................................12
SECTION 8.02. Amendments and Waivers.........................................13
SECTION 8.03. Successors and Assigns.........................................13
SECTION 8.04. Governing Law..................................................13
SECTION 8.05. Jurisdiction...................................................13
SECTION 8.06. Waiver Of Jury Trial...........................................13
SECTION 8.07. Counterparts; Third Party Beneficiaries........................14
SECTION 8.08. Unwind.........................................................14
SECTION 8.09. Entire Agreement...............................................14
SECTION 8.10. Severability...................................................14
Schedule A Schedule of Buyers, Purchase Price and Company Securities
Exhibit A Certificate of Incorporation of Silkworm Acquisition
Corporation
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of August 17, 1998 between Silkworm Acquisition
Corporation, a Delaware corporation ("MergerSub") and the Persons named on
Schedule A hereto (each a "Buyer" and collectively, the "Buyers").
W I T N E S S E T H :
WHEREAS, MergerSub has agreed to merge (the "Merger") with and into
Insilco Holding Co. (the "Company") on the terms and conditions set forth in the
Agreement and Plan of Merger dated as of March 24, 1998 between MergerSub and
the Company (as the same may be or have been amended from time to time, the
"Merger Agreement");
WHEREAS, to finance, in part, the payment of the consideration payable
in the Merger, MergerSub intends to issue shares of common stock, par value
$0.001 per share (the "Common Stock" or "Securities");
WHEREAS, all of the outstanding capital stock of MergerSub is currently
owned by DLJ Merchant Banking Partners II, L.P. ("DLJMB"); and
WHEREAS, MergerSub desires to issue and sell the relevant Securities to
the Buyers, and each of the Buyers desires to purchase the relevant Securities
from MergerSub, upon the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person. For the purposes of this definition, the term "control" (including
its correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banking institutions in New York, New York are authorized or required
by law to close.
"Closing Date" means the date of the Closing.
"Common Shares" means shares of Common Stock.
"CVC" means 399 Venture Partners, Inc., a wholly owned indirect
subsidiary of Citibank, N.A.
"DLJMB Entities" means DLJMB and the affiliated funds and entities
listed on the signature pages hereof.
"Investors' Agreement" means the Investors' Agreement to be entered
into on the Closing Date among the Company, the DLJMB Entities and CVC.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or adverse claim of any
kind in respect of such property or asset.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Transaction Documents" means this Agreement, the Merger Agreement, the
Voting Agreement and the Investors' Agreement.
"Voting Agreement" means the Voting Agreement dated as of March 24,
1998 among MergerSub, Insilco Corporation and Water Street Corporate Recovery
Fund I, L.P., as the same may be, and may have been, amended from time to time.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Certificate of Incorporation 3.08
Closing 2.02
Common Stock Recitals
Company Recitals
Damages 6.02
DLJMB Recitals
Merger Recitals
MergerSub Recitals
Merger Agreement Recitals
Purchase Price 2.01
Securities Recitals
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, MergerSub agrees to issue and sell to each Buyer
and each Buyer agrees, severally and not jointly, to purchase from MergerSub the
Securities set forth opposite such Buyer's name on Schedule A hereto at the
Closing. The purchase price for the Securities (the "Purchase Price") is the
amount in cash specified on Schedule A hereto. The sale of the Securities and
the payment of the Purchase Price shall be effected as provided in Section 2.02.
SECTION 2.02. Closing. The closing (the "Closing") of the purchase and
sale of the Securities hereunder shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York, as soon as possible after
satisfaction of the conditions set forth in Article 5 or at such other time or
place as the Buyers and MergerSub may agree. At the Closing:
(a) Each Buyer shall deliver to MergerSub, in immediately available
funds, the amount of the aggregate Purchase Price set forth opposite such
Buyer's name on Schedule A hereto, by wire transfer (or other means acceptable
to MergerSub) to an account of MergerSub with a bank in New York City designated
by MergerSub, by notice to such Buyer, not later than two Business Days prior to
the Closing Date.
(b) MergerSub shall deliver to each Buyer certificates, or other
appropriate documentation, for the relevant Securities free and clear of any
Liens and preemptive rights and duly registered in the name of such Buyer.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF MERGERSUB
MergerSub represents and warrants to each Buyer as of the date hereof
and as of the Closing Date that:
SECTION 3.01. Corporate Existence and Power. MergerSub is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted and as proposed to be conducted following the Merger.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by MergerSub of each of the relevant Transaction Documents and the
consummation of the transactions contemplated hereby and thereby (including the
issuance and sale of the Securities) are within MergerSub's corporate powers and
have been duly authorized by all necessary corporate action on the part of
MergerSub. Each of the relevant Transaction Documents constitutes or, when
executed, will constitute, a valid and binding agreement of MergerSub,
enforceable against MergerSub in accordance with its terms, except as limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement or creditors' rights
generally, or (ii) laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
SECTION 3.03. Governmental Authorization. Except for compliance with
the matters referred to in Sections 3.03 and 4.03 of the Merger Agreement, the
execution, delivery and performance by MergerSub of each of the relevant
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby require no order, license, consent, authorization or approval
of, or exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official.
SECTION 3.04. Noncontravention. The execution, delivery and performance
by MergerSub of each of the relevant Transaction Documents and the consummation
of the transactions contemplated hereby and thereby do not and will not (i)
violate the certificate of incorporation or bylaws of MergerSub, (ii) violate
any applicable law, rule, regulation, judgment, injunction, order or decree,
(iii) require any consent or other action by any Person under, constitute a
default under (with due notice or lapse of time or both), or give rise to any
right of termination, cancellation or acceleration of any right or obligation of
MergerSub or to a loss of any benefit to which MergerSub is entitled under any
provision of any agreement or other instrument binding upon MergerSub or any of
MergerSub's assets or properties or (iv) result in the creation or imposition of
any material Lien on any property or asset of MergerSub.
SECTION 3.05. Capitalization and Voting Rights. (a) The authorized
capital stock of MergerSub consists of 50,000,000 Common Shares and the
outstanding capital stock of MergerSub as of the date hereof and immediately
prior to the Closing is one Common Share. The rights, privileges and preferences
of the Common Stock are set forth in the certificate of incorporation attached
hereto as Exhibit A.
(b) Immediately following the Closing, the outstanding capital stock
of MergerSub will be 1,222,222 Common Shares and warrants to purchase 44,850
Common Shares.
(c) Except as set forth in this Section 3.05, there are, and
immediately after the Closing there will be, no outstanding (i) shares of
capital stock or voting securities of MergerSub, (ii) securities of MergerSub
convertible into or exchangeable for shares of capital stock or voting
securities of MergerSub, (iii) options, warrants or other rights (including,
without limitation, preemptive rights) to acquire from MergerSub, or other
obligation of MergerSub to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of MergerSub or (iv) no obligation of MergerSub to repurchase or
otherwise acquire or retire any shares of capital stock or any convertible
securities, rights or options of the type described in (i), (ii), or (iii).
SECTION 3.06. Valid Issuance of Securities. Each of the Common Shares
which are being issued to the Buyers hereunder, have been duly and validly
authorized and when issued, sold and delivered in accordance with the terms
hereof for the consideration set forth herein, will be duly and validly issued,
fully paid and nonassessable and free of preemptive rights.
SECTION 3.07. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of MergerSub, threatened against
or affecting MergerSub or any of its respective properties before any court or
arbitrator or any governmental body, agency or official which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by the Transaction Documents.
SECTION 3.08. Newly Formed Corporation. MergerSub was incorporated on
March 18, 1998 in the State of Delaware solely for the purpose of effectuating
the transactions contemplated by the Transaction Documents and has not conducted
any business or entered into any agreements or commitments except in furtherance
of the foregoing.
SECTION 3.09. Meaning of MergerSub. Except as otherwise specifically
provided herein, references to MergerSub contained in this Article 3 shall be
construed to refer to MergerSub on the date hereof and for purposes of
determining the satisfaction of Section 5.02(a) immediately prior to the
consummation of the transactions contemplated by the Merger Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer represents and warrants to MergerSub, severally as to itself
only and not jointly or as to any other Buyer, as of the date hereof and as of
the Closing Date that:
SECTION 4.01. Existence and Power. Such Buyer is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all powers (corporate, partnership or otherwise) and all
material governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted.
SECTION 4.02. Authorization. The execution, delivery and performance by
such Buyer of each of this Agreement, and when executed, the Investors'
Agreement and the consummation of the transactions contemplated hereby and
thereby are or, when executed, will be, within the powers (corporate,
partnership or otherwise) of such Buyer and have been or will have been duly
authorized by all necessary action on the part of such Buyer. This Agreement
constitutes and the Investors' Agreement, when executed, will constitute, a
valid and binding agreement of such Buyer, each enforceable in accordance with
their respective terms, except as limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii) laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by such Buyer of this Agreement and the Investors' Agreement and the
consummation of the transactions contemplated hereby and thereby require no
order, license, consent, authorization or approval of, or exemption by, or
action by or in respect of, or notice to, or filing or registration with, any
governmental body, agency or official.
SECTION 4.04. Purchase for Investment. Such Buyer is purchasing the
relevant Securities for investment for its own account and not with a view to,
or for sale in connection with, any distribution thereof.
SECTION 4.05. Private Placement. (a) Such Buyer understands that (i)
the offering and sale of the Securities hereby is intended to be exempt from
registration pursuant to Section 4(2) of the 1933 Act and (ii) there is no
existing public market for the relevant Securities, and there can be no
assurance that any Buyer will be able to sell or dispose of the relevant
Securities to be purchased by such Buyer.
(b) Such Buyer's financial situation is such that such Buyer
can afford to bear the economic risk of holding the relevant Securities acquired
hereunder for an indefinite period of time, and such Buyer can afford to suffer
the complete loss of the investment in the relevant Securities.
(c) Such Buyer's knowledge and experience in financial and
business matters are such that it is capable of evaluating the merits and risks
of the investment in the relevant Securities, or such Buyer has been advised by
a representative possessing such knowledge and experience.
(d) Such Buyer understands that the Securities acquired
hereunder are a speculative investment which involves a high degree of risk of
loss of the entire investment therein, that there are substantial restrictions
on the transferability of the Securities as set forth in the Investors'
Agreement, and that for an indefinite period following the date hereof there
will be no public market for the Securities and that, accordingly, it may not be
possible for such Buyer to sell the Securities in case of emergency or
otherwise.
(e) Such Buyer and its representatives, including, to the
extent it deems appropriate, its professional, financial, tax and other
advisors, have had the opportunity to review all documents provided to them in
connection with the investment in the Securities, and such Buyer understands and
is aware of the risks related to such investment.
(f) Such Buyer and its representatives have been given the
opportunity to examine all documents and to ask questions of, and to receive
answers from, MergerSub and its representatives concerning the terms and
conditions of the acquisition of the Securities and the transactions
contemplated by the Transaction Documents and to obtain all additional
information which such Buyer or its representatives deem necessary.
(g) Such Buyer is an "accredited investor" as such term is
defined in Regulation D under the 1933 Act.
SECTION 4.06. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Buyer, threatened
against or affecting, such Buyer before any court or arbitrator or any
governmental body, agency or official which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions contemplated by this
Agreement or the Investors' Agreement.
SECTION 4.07. Brokers or Finders' Fees. Except as contemplated by the
Merger Agreement, there is no investment banker, broker, finder or other
intermediary which has been retained by, will be retained by or is authorized to
act on behalf of, such Buyer who might be entitled to any fee or commission from
the Company, MergerSub, CVC or the DLJMB Entities upon consummation of the
transactions contemplated by this Agreement.
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Each Buyer and MergerSub.
The obligations of each Buyer and MergerSub to consummate the Closing are
subject to the satisfaction of the following conditions:
(a) (i) The conditions to the consummation of the Merger Agreement
shall have been satisfied or waived with any waiver of conditions and
any other amendments or changes having been consented to by each Buyer,
(ii) no party to the Merger Agreement shall be in default of its
obligations thereunder, and (iii) the closing of the Merger (as
contemplated by the Merger Agreement) shall be about to be consummated.
(b) Each other Buyer shall purchase or have purchased the Securities
to be purchased by it hereunder by paying the Purchase Price applicable
thereto in accordance with Section 2.02.
(c) Each other Buyer and the Company shall have entered into the
Investors' Agreement.
(d) There shall not be in effect any judgment, injunction, order or
decree of any governmental body, entity or authority prohibiting or
restraining the transactions contemplated hereby.
SECTION 5.02. Additional Conditions to Obligation of Each Buyer. The
obligation of each Buyer to consummate the Closing is subject to the
satisfaction of the following further condition:
(a) The representations and warranties of MergerSub contained in this
Agreement and in any certificate or other writing delivered by
MergerSub pursuant hereto shall be true, complete and correct in all
material respects when made and at and as of the Closing Date, as if
made at and as of such date.
SECTION 5.03. Additional Conditions to Obligation of MergerSub. The
obligation of MergerSub to consummate the Closing with respect to any Buyer is
subject to the satisfaction of the following further condition:
(a) The representations and warranties of such Buyer contained in this
Agreement and in any certificate or other writing delivered by such
Buyer pursuant hereto shall be true, complete and correct in all
material respects when made and at and as of the Closing Date, as if
made at and as of such date.
ARTICLE 6
SURVIVAL; INDEMNIFICATION
SECTION 6.01. Survival. The representations and warranties of the
parties hereto contained in this Agreement or in any certificate delivered
pursuant hereto or in connection herewith shall survive the Closing until twelve
months after the Closing Date. Notwithstanding the preceding sentence, any
representation or warranty in respect of which indemnity may be sought under
this Agreement shall survive the time at which it would otherwise terminate
pursuant to the preceding sentence, if notice of the inaccuracy or breach
thereof giving rise to such right of indemnity shall have been given to the
party against whom such indemnity may be sought prior to such time, but only as
to such inaccuracy or breach. A breach of any representation or warranty made in
this Agreement shall not affect in any manner whatsoever the relative rights and
obligations of the parties to and under the Investors' Agreement.
SECTION 6.02. Indemnification. (a) MergerSub hereby agrees to
indemnify, severally and not jointly, each Buyer and its Affiliates, limited
partners, general partners, stockholders, directors, officers and employees
against and agrees to hold each of them harmless from and against any and all
damage, loss, liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses)
("Damages") incurred or suffered by any such party arising out of any
misrepresentation or any breach of a warranty, covenant or agreement made or to
be performed by MergerSub pursuant to this Agreement.
(b) Each Buyer hereby agrees to indemnify, severally and not jointly,
MergerSub and its Affiliates, limited partners, general partners, directors,
officers and employees against and agrees to hold each of them harmless from any
and all Damages incurred or suffered by any such party arising out of any
misrepresentation or any breach of a warranty, covenant or agreement made or to
be performed by such Buyer pursuant to this Agreement.
SECTION 6.03. Exclusivity. After the Closing, Section 6.02 will provide
the exclusive remedy for any misrepresentation or breach of warranty, covenant
or other agreement.
ARTICLE 7
TERMINATION
SECTION 7.01. Grounds for Termination. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual written agreement of MergerSub and all Buyers;
(b) by MergerSub or any Buyer if the Merger Agreement has been
terminated; or
(c) by MergerSub or any Buyer if consummation of the transactions
contemplated hereby would violate any non-appealable final injunction,
order, decree or judgment of any court or governmental body having
competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses 7.01(b) or
(c) shall give notice of such termination to the other parties.
SECTION 7.02. Effect of Termination. If this Agreement is terminated as
permitted by Section 7.01, such termination shall be without liability of any
party (or any stockholder, general partner, limited partner, director, officer,
employee, agent, consultant, representative or Affiliate of such party) to the
other parties to this Agreement; provided that if such termination shall result
from the willful (i) failure of any party to fulfill a condition to the
performance of the obligations of the other parties, (ii) failure to perform a
covenant of this Agreement or (iii) breach by any party hereto of any
representation or warranty or agreement contained herein, such party shall be
fully liable for any and all Damages incurred or suffered by the other parties
as a result of such failure or breach. The provisions of Sections 8.04, 8.05 and
8.06 shall survive any termination hereof pursuant to Section 7.01.
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given as follows:
if to any Buyer, to such Buyer at the address specified by such Buyer
on the signature pages of this Agreement or in a notice given by such Buyer to
MergerSub for such purpose;
if to MergerSub, to:
Silkworm Acquisition Corporation
c/o DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, New York 10172
Attention: William F. Dawson, Jr.
Fax: (212) 892-7553
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.
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
SECTION 8.02. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 8.03. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
SECTION 8.04. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
SECTION 8.05. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 8.01 shall be deemed
effective service of process on such party.
SECTION 8.06. Waiver Of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 8.07. Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement shall confer upon any Person other than the parties
hereto any rights or remedies hereunder.
SECTION 8.08. Unwind. In the event that the Effective Time (as defined
in the Merger Agreement) has not occurred within 30 days after the Closing Date,
then the parties hereto agree that they shall rescind any transactions
consummated at the Closing; provided that such recission shall not relieve any
party of any obligation arising out of a breach of this Agreement.
SECTION 8.09. Entire Agreement. The Transaction Documents (including
the documents, schedules, annexes, appendices and exhibits attached hereto and
thereto and referred to herein and therein) constitute the entire agreement
between agreements and understandings, both oral and written, between the
parties with respect to the subject matter thereof.
SECTION 8.10. Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
SILKWORM ACQUISITION CORPORATION
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Vice President and Secretary
DLJ MERCHANT BANKING PARTNERS II,
L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,as
managing general partner
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,as
advisory general partner
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc., as
managing general partner
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENNIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as manager
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
UK INVESTMENT PLAN 1997 PARTNERS
By: Donaldson, Lufkin & Jenrette, Inc.,
as general partner
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ ESC II, L.P.
By: DLJ LBO Plans Management
Corporation, as manager
By: /s/ William F. Dawson, Jr.
-----------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
399 VENTURE PARTNERS, INC.
By: /s/ David Y. Howe
-----------------------------------
Name: David Y. Howe
Title: Vice President
Address: c/o Citicorp Venture Capital Ltd.
399 Park Avenue- 14th Floor
New York, NY 10043
Fax: 212-888-2940
SCHEDULE A
No. of Aggregate
Common Purchase
Investor Shares Price
- ----------- ---------- --------------
DLJ Merchant Banking Partners II, L.P. 601,929 27,086,805
DLJ Merchant Banking Partners II-A, L.P. 23,972 1,078,740
DLJ Offshore Partners II, C.V. L.P. 29,600 1,332,000
DLJ Diversified Partners, L.P. 35,191 1,583,595
DLJ Diversified Partners-A, L.P. 13,069 588,105
DLJMB Funding II, Inc. 106,869 4,809,105
DLJ Millennium Partners, L.P. 9,733 437,985
DLJ Millennium Partners-A, L.P. 1,898 85,410
DLJ EAB Partners, L.P. 2,703 121,635
UK Investment Plan 1997 Partners 15,926 716,670
DLJ ESC II, L.P. 113,508 5,107,860
DLJ First ESC, L.P. 1,158 52,110
399 Venture Partners, Inc. 266,666 11,999,970
Total 1,222,222 $54,999,990
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
SILKWORM ACQUISITION CORPORATION
* * * * *
FIRST: The name of the Corporation is Silkworm Acquisition
Corporation.
SECOND: The address of its registered office in the State of Delaware
is 1013 Centre Road, City of Wilmington, County of New Castle, Delaware 19805.
The name of its registered agent at such address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 100, and the par value of each such share is $1.00,
amounting in the aggregate to $100.
FIFTH: The name and mailing address of the incorporator are:
Name Mailing Address
- -------------------------------------------- -----------------------------
Kimberly Yule 450 Lexington Avenue
New York, New York 10017
SIXTH: The Board of Directors shall have the power to adopt, amend or
repeal the bylaws of the Corporation.
SEVENTH: Election of directors need not be by written ballot unless the
bylaws of the Corporation so provide.
EIGHTH: (1) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by Delaware Law. The right to indemnification conferred in this ARTICLE EIGHTH
shall also include the right to be paid by the Corporation the expenses incurred
in connection with any such proceeding in advance of its final disposition to
the fullest extent authorized by Delaware Law. The right to indemnification
conferred in this ARTICLE EIGHTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the officers, employees and agents of the Corporation
to such extent and to such effect as the Board of Directors shall determine to
be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE EIGHTH shall not
be exclusive of any other right which any person may otherwise have or hereafter
acquire.
(5) Neither the amendment nor repeal of this ARTICLE EIGHTH, nor the
adoption of any provision of this Certificate of Incorporation or the bylaws of
the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE EIGHTH
in respect of any acts or omissions occurring prior to such amendment, repeal,
adoption or modification.
NINTH: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE EIGHTH,
all rights and powers conferred herein on stockholders, directors and officers,
if any, are subject to this reserved power.
IN WITNESS WHEREOF, I have hereunto signed my name this 18th day of
March 1998.
/s/ Kimberley Yule
------------------
Kimberly Yule
AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
SILKWORM ACQUISITION CORPORATION
* * * * *
Silkworm Acquisition Corporation (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "GCL"), does hereby amend the Certificate of
Incorporation of the Corporation, which was originally filed on March 18, 1998.
The undersigned hereby certifies that the Corporation has not received
any payment for any of its stock and that this Amendment to the Certificate of
Incorporation has been duly adopted in accordance with Section 241 of the GCL.
Article Fourth is hereby deleted in its entirety and replaced with:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 1,500,000 consisting of
1,500,000 shares of Common Stock, par value $0.001 per share."
THE UNDERSIGNED, being the Vice President and Secretary of Silkworm
Acquisition Corporation for the purpose of amending the Certificate of
Incorporation of the Corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Amended Certificate of Incorporation, hereby
declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this 2nd day of April
1998 .
SILKWORM ACQUISITION CORPORATION
By: /s/ William F. Dawson, Jr.
----------------------------------------
Name: William F. Dawson, Jr.
Title: Vice President and Secretary
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION
OF
SILKWORM ACQUISITION CORPORATION
Silkworm Acquisition Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the FOURTH section in its entirety and replacing it with the
following:
"FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 50,000,000 consisting of 50,000,000 shares
of Common Stock, par value $0.001 per share."
2. The aforesaid amendment to the Certificate of Incorporation of the
Corporation has been duly adopted by the Board of Directors and stockholders of
the Corporation in accordance with the applicable provisions of Section 242 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed and acknowledged by its Vice President and Secretary this 5th day of
August, 1998.
SILKWORM ACQUISITION CORPORATION
By: /s/ William F. Dawson, Jr.
--------------------------
Name: William F. Dawson, Jr.
Title: Vice President and Secretary
EXHIBIT 99.5
INVESTORS' AGREEMENT
dated as of
August 17, 1998
among
INSILCO HOLDING CO.
and
THE INVESTORS NAMED HEREIN
TABLE OF CONTENTS
----------------------
Page
----
ARTICLE 1
Definitions
Section 1.01. Definitions...................................................2
ARTICLE 2
Corporate Governance
Section 2.01. Composition of the Board......................................9
Section 2.02. Removal......................................................10
Section 2.03. Vacancies....................................................10
Section 2.04. Meetings.....................................................11
Section 2.05. Action by the Board..........................................11
Section 2.06. Conflicting Charter or Bylaw Provisions......................11
Section 2.07. Notice of Meeting; Participation.............................11
Section 2.08. Subsidiary Governance........................................11
Section 2.09. Affiliate Transactions.......................................11
ARTICLE 3
Restrictions on Transfer
Section 3.01. General......................................................12
Section 3.02. Legends......................................................13
Section 3.03. Permitted Transferees........................................13
ARTICLE 4
Tag-Along Rights; Drag-along Rights
Section 4.01. Rights to Participate in Transfer............................13
Section 4.02. Right to Compel Participation in Certain Transfers...........16
ARTICLE 5
Registration Rights
Section 5.01. Demand Registration..........................................18
Section 5.02. Incidental Registration......................................20
Section 5.03. Holdback Agreements..........................................22
Section 5.04. Registration Procedures......................................22
Section 5.05. Indemnification by the Company...............................25
Section 5.06. Indemnification by Participating Stockholders................26
Section 5.07. Conduct of Indemnification Proceedings.......................27
Section 5.08. Contribution.................................................28
Section 5.09. Participation in Public Offering.............................29
Section 5.10. Other Indemnification........................................29
Section 5.11. Cooperation by the Company...................................29
Section 5.12. No Transfer of Registration Rights...........................30
ARTICLE 6
Miscellaneous
Section 6.01. Entire Agreement.............................................30
Section 6.02. Binding Effect; Benefit......................................30
Section 6.03. Confidentiality..............................................30
Section 6.04. Exclusive Financial and Investment Banking Advisor...........31
Section 6.05. Assignability................................................31
Section 6.06. Amendment; Waiver; Termination...............................32
Section 6.07. Notices......................................................32
Section 6.08. Counterparts.................................................33
Section 6.09. Applicable Law...............................................34
Section 6.10. Specific Enforcement.........................................34
Section 6.11. Consent to Jurisdiction......................................34
INVESTORS' AGREEMENT
AGREEMENT dated as of August 17, 1998 among (i) Insilco Holding Co., a
Delaware corporation (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").
W I T N E S S E T H:
WHEREAS, certain parties hereto (i) have acquired securities of
Silkworm Acquisition Corporation ("MergerSub"), the predecessor by merger to
the Company, and/or (ii) will be acquiring securities of the Company;
WHEREAS, pursuant to the terms of the Merger Agreement and Plan of
Merger dated as of March 24, 1998 (as the same may be or may have been amended
from time to time, the "Merger Agreement"), MergerSub has been merged with and
into the Company with the Company as the surviving corporation;
WHEREAS, the parties hereto desire to enter into this Agreement to
govern certain of their rights, duties and obligations after consummation of
the transactions contemplated by the Merger Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and in the Merger Agreement, the parties hereto agree as
follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" means, with respect to any Person, any other Person,
directly or indirectly, controlling, controlled by, or under common control
with, such Person; 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.
"Aggregate Ownership" means, with respect to any Stockholder or group
of Stockholders, and with respect to any class of Company Securities, the total
amount of such class of Company Securities "beneficially owned" (as such term
is defined in Rule 13d-3 under the Exchange Act) (without duplication) by such
Stockholder or group of Stockholders as of the date of such calculation,
calculated on a Fully Diluted basis.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Bylaws" means the Amended and Restated Bylaws of the Company, as the
same may be amended from time to time.
"Charter" means the Amended and Restated Certificate of Incorporation
of the Company, as the same may be amended from time to time.
"Closing Date" means August 17, 1998.
"Common Stock" means the common stock, par value $0.001 per share,
of the Company and any stock into which such Common Stock may thereafter be
converted or changed, and "Common Shares" means shares of Common Stock.
"Company Securities" means the Common Stock and securities convertible
into or exchangeable for Common Stock and options, Preferred Stock, warrants
(including the Warrants) or other rights to acquire Common Stock, Preferred
Stock or any other equity security or equity-linked security issued by the
Company.
"Drag-Along Portion" means, with respect to any Other Stockholder and
any class of Company Securities, (i) the number of such class of Company
Securities beneficially owned by such Other Stockholder on a Fully Diluted
basis multiplied by (ii) a fraction, the numerator of which is the number of
such class of Company Securities proposed to be sold by the DLJ Entities in any
sale to which Section 4.02 applies and the denominator of which is the total
number of such class of Company Securities on a Fully Diluted basis
beneficially owned by the DLJ Securities immediately prior to such sale.
"Exchange Act" means the Securities Exchange Act of 1934, as the same
may be amended, and the rules and regulations promulgated thereunder.
"Fully Diluted" means, with respect to the Common Stock, all
outstanding Common Shares and all Common Shares issuable in respect of
securities convertible into or exchangeable for Common Shares, all stock
appreciation rights, options, warrants (including the Warrants) and other
rights to purchase or subscribe for Common Shares or securities convertible
into or exchangeable for Common Shares; provided that, to the extent any of the
foregoing stock appreciation rights, options, warrants or other rights to
purchase or subscribe for Common Shares are subject to vesting, the Common
Shares subject to vesting shall be included in the definition of "Fully
Diluted" only upon and to the extent of such vesting.
"Initial Ownership" means, with respect to any Stockholder and any
class of Company Securities, the number of shares or units of such class of
Company Securities beneficially owned (and (without duplication) which such
Persons have the right to acquire) as of the date hereof, or in the case of any
Person that shall become a party to this Agreement on a later date, as of such
date, in each case taking into account any stock split, stock dividend, reverse
stock split or similar event.
"First Public Offering" means the first Public Offering after the date
hereof.
"Other Stockholders" means all Stockholders other than the DLJ
Entities.
"Permitted Transferee" means:
(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, orthe
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, all of
the stockholders, members or general or limited partners of
which, include only DLJ Entities, DLJ Affiliates, DLJ
Associates, their spouses or their lineal descendants, (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 or (F) any Other Stockholder;
(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, (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 or (E) any other Stockholder; and
(iii) in the case of any Other Stockholder (other
than CVC), (A) any Other Stockholder, (B) a Person to whom
Common Shares are transferred from such Other Stockholder (1)
by will or the laws of descent and distribution or (2) by
gift without consideration of any kind; provided that, in the
case of clause (2), such transferee is the issue or spouse of
such Other Stockholder or (C) a trust that is for the
exclusive benefit of such Other Stockholder or its Permitted
Transferees under (B) above.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means the 15% senior exchangeable preferred stock,
par value $0.001 per share and due 2010 of the Company, and "Preferred Shares"
means shares of Preferred Stock.
"Pro Rata Portion" means, with respect to any Stockholder at any time,
(i)the number of Common Shares that a Stockholder owns at such time multiplied
by (ii)a fraction, the numerator of which is the number of Common Shares to be
sold by the DLJ Entities in any sale to which Section 4.01 applies and the
denominator of which is the total number of Common Shares, on a Fully Diluted
basis, held in the aggregate by the DLJ Entities immediately prior to any such
sale.
"Public Offering" means an underwritten public offering of Registrable
Securities of the Company 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).
"Registration Expenses" means all (i) registration and filing fees,
(ii) fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
internal expenses of the Company (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), (v) reasonable fees and disbursements of counsel for the Company and
customary fees and expenses for independent certified public accountants
retained by the Company (including the expenses of any comfort letters or costs
associated with the delivery by independent certified public accountants of a
comfort letter or comfort letters requested pursuant to Section 5.04(h)), (vi)
reasonable fees and expenses of any special experts retained by the Company in
connection with such registration, (vii) reasonable fees and expenses of one
counsel for all of the Stockholders participating in the offering selected (A)
by the DLJ Entities, in the case of any offering in which such entities
participate (other than one pursuant to a CVC Demand), (B) in the case of a CVC
Demand, by the CVC Entities, or (C) in any other case, by the Stockholders
holding the majority of Shares or Warrants to be sold for the account of all
Stockholders in the offering, (viii) fees and expenses in connection with any
review of underwriting arrangements by the National Association of Securities
Dealers, Inc. (the "NASD") including fees and expenses of any "qualified
independent underwriter" and (ix) fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, other than any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities, or any out-of-pocket expenses (except as set forth in
clause (vii) above) of the Stockholders (or the agents who manage their
accounts) or any fees and expenses of underwriter's counsel.
"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 this Agreement and such Shares or
Warrants may be resold without subsequent registration under the Securities Act.
"Rule 144" means Rule 144, Rule 144A and Rule 145 (or any successor
provisions) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as the same may be
amended, and the rules and regulations promulgated thereunder.
"Shares" means Common Shares and Preferred Shares.
"Stockholder" means each Person (other than the Company) who shall be a
party to or bound by this Agreement, whether in connection with the execution
and delivery hereof as of the date hereof, pursuant to Section 3.03, Section
6.05, or otherwise, so long as such Person shall beneficially own any Company
Securities.
"Subscription Agreements" means (i) the Subscription Agreement dated
as of August 17, 1998 among MergerSub, the DLJ Entities and CVC relating to the
issue of Common Shares and (ii) the Subscription Agreement dated as of August
17, 1998 among the Company and the DLJ Entities relating to the issue of
Preferred Shares and Warrants.
"Tag-Along Portion" means
(i) where the DLJ Entities are selling Common Stock, the number of
Common Shares held (or, without duplication, that such shareholder has the
right to acquire from any Person) by the Tagging Person multiplied by a
fraction, the numerator of which is the maximum number of Common Shares
proposed to be sold by the DLJ Entities in the Tag-Along Sale pursuant to
Section 4.01, and the denominator of which is the aggregate number of Common
Shares on a Fully Diluted basis owned by the DLJ Entities, and
(ii) where the DLJ Entities are selling Warrants, the number of
Common Shares held (or, without duplication, acquirable under the Warrants) by
the Tagging Person, multiplied by a fraction the numerator of which is the
number of Common Shares for which the Warrants proposed to be sold by the DLJ
Entities in the Tag-Along Sale pursuant to Section 4.01 are exercisable, and
the denominator of which is the aggregate number of Common Shares on a Fully
Diluted basis owned by the DLJ Entities,
provided that where a Tag-Along Right includes the right to sell Common Stock,
any holder of Warrants may, in lieu of exercising Warrants, Transfer Warrants
for some or all of that number of Common Shares as would otherwise have
constituted its Tag-Along Portion, in which event the price to be received with
respect to each such Warrant shall be the price per Common Share applicable to
the Tag-Along Offer, less the then applicable exercise price of the Warrants
owned by such holder.
"Third Party" means a prospective purchaser(s) of Shares in an arms-
length transaction from a Stockholder where such purchaser(s) is not a
Permitted Transferee or other Affiliate of such Stockholder.
"Transfer" means, with respect to any Company Security, (i) when used
as a verb, to sell, assign, dispose of, exchange, pledge, encumber,
hypothecate, or otherwise transfer such security or any participation or
interest therein, whether directly or indirectly, or agree or commit to do any
of the foregoing and (ii) when used as a noun, a direct or indirect sale,
assignment, disposition, exchange pledge, encumbrance, hypothecation, or other
transfer of such security or any participation or interest therein or any
agreement or commitment to do any of the foregoing.
"Transfer Percentage" means, as of any date, with respect to any
Person, (x) the aggregate number of Common Shares transferred prior to such date
by such Person, other than any Common Shares transferred to Permitted
Transferees of such Person, divided by (y) the Initial Ownership of Common
Shares of such Person.
"Warrants" means the warrants issued by the Company to Stockholders for
the purchase of an aggregate of 65,603 Common Shares (subject to adjustment as
provided for herein).
"Warrant Shares" means Common Shares issuable by the Company upon
exercise of the Warrants.
(a) The term "CVC Entities", to the extent that CVC shall have
transferred any of its Company Securities to any of its Permitted Transferees,
shall mean CVC and the Permitted Transferees thereof, taken together, and any
right, obligation or action that may be taken at the election of CVC may be
taken at the election of the CVC Entities and such Permitted Transferees.
(b) The term "DLJ Entities", to the extent such entities shall have
transferred any of their Company Securities to any of their Permitted
Transferees, shall mean the DLJ Entities and such Permitted Transferees, taken
together, and any right, obligation or action that may be taken at the election
of the DLJ Entities may be taken at the election of the DLJ Entities and such
Permitted Transferees.
(c) The term "Other Stockholders", to the extent such stockholders
shall have transferred any of their Company Securities to any Permitted
Transferees thereof, shall mean the Other Stockholders and such Permitted
Transferees, taken together, and any right, obligation or action that may be
taken at the election of the Other Stockholders may be taken at the election of
the Other Stockholders and such Permitted Transferees.
(d) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
CVC Demand 5.01(a)
Applicable Holdback Period 5.03
Cause 2.02
Company Preamble
Compelled Sale 4.02(a)
Compelled Sale Price 4.02(a)
Compelled Sale Notice 4.02(a)
Compelled Sale Notice Period 4.02(a)
Confidential Information 6.03(b)
CVC Preamble
Demand Registration 5.01(a)
DLJ Entity Preamble
DLJMB Preamble
DLJSC 6.04
Drag-Along Rights 4.02(a)
Holders 5.01(a)
Incidental Registration 5.02(a)
Indemnified Party 5.07
Indemnifying Party 5.07
Independent Director 2.01(a)
Inspectors 5.04(g)
Maximum Offering Size 5.01(e)
Merger Agreement Recitals
MergerSub Recitals
Records 5.04(g)
Replacement Nominee 2.03(a)
Representatives 6.03(b)
Requesting Stockholder 5.01(e)
Section 4.01 Response Notice 4.01(a)
Tag-Along Notice 4.01(a)
Tag-Along Notice Period 4.01(a)
Tag-Along Offer 4.01(a)
Tag-Along Right 4.01(a)
Tag-Along Sale 4.01(a)
Tagging Person 4.01(a)
ARTICLE 2
Corporate Governance
Section 2.01. Composition of the Board. (a)The Board shall consist
of seven directors of whom (i) four will be designated by DLJMB in its sole
discretion, (ii) one will be Robert L. Smialek for so long as he is employed by
the Company, (iii) one will be designated by CVC as long as at the close of
business on the Business Day immediately preceding such designation, the number
of Common Shares held by CVC is more than 10% of the outstanding Common Shares
on a Fully Diluted basis and (iv) one will be designated by DLJMB but shall not
be either an "Affiliate" or an "Associate" (as such terms are used within the
meaning of Rule 12b-2 under the Exchange Act) of the DLJ Entities or the Other
Stockholders (the "Independent Director") and shall be designated by DLJMB
after consultation with the Other Stockholders. On the Closing Date, the
initial Board shall be Thompson Dean, William F. Dawson, Jr., Robert L. Smialek
and, shortly after the Closing Date, David Howe. DLJMB shall be permitted to
increase the number of directors who serve on the Board from seven to eight and
DLJMB shall be permitted to designate the eighth director.
(b) Each Stockholder entitled to vote for the election of directors
to the Board agrees that it will vote its Shares or execute written consents,
as the case may be, and take all other necessary action (including action by
written consent or causing the Company to call a special meeting of
stockholders) in order to ensure that the composition of the Board is as set
forth in this Section 2.01; provided that the Other Stockholders shall not be
required to vote for the board-designees of DLJMB if the aggregate number of
Common Shares held by the DLJ Entities is, at the close of business on the day
preceding such vote or execution of proxies or consents, less than 10% of the
DLJ Entities Initial Ownership of Common Shares on a Fully Diluted Basis.
Section 2.02. Removal. Each Stockholder agrees that if, at any time,
it is then entitled to vote for the removal of directors of the Company, it
will not vote any of its Shares in favor of the removal of any director who
shall have been designated or nominated pursuant to Section 2.01 unless either
such removal shall be for Cause or the Person or Persons entitled to designate
or nominate such director shall have consented to such removal in writing;
provided that if the Persons entitled to designate or nominate any director
pursuant to Section 2.01 shall request the removal, with or without Cause, of
such director in writing, such Stockholder shall vote its Shares in favor of
such removal. Removal for "Cause" shall mean removal of a director because of
such directors (a) willful and continued failure substantially to perform his
duties with the Company in his established position, (b) willful conduct which
is injurious to the Company or any of its subsidiaries, monetarily or
otherwise, (c) conviction for, or guilty plea to, a felony or a crime involving
moral turpitude, or (d) abuse of illegal drugs or other controlled substances
or habitual intoxication.
Section 2.03. Vacancies. If, as a result of death, disability,
retirement, resignation, removal (with or without cause) or otherwise, there
shall exist or occur any vacancy of the Board:
(a) the Person or Persons entitled under Section 2.01 to designate
or nominate such director whose death, disability, retirement, resignation or
removal resulted in such vacancy may, subject to the provisions of Section
2.01, designate another individual (the "Replacement Nominee") to fill such
capacity and serve as a director of the Company; and
(b) subject to Section 2.01, each Stockholder then entitled to vote
for the election of the Replacement Nominee as a director of the Company agrees
that it will vote its Shares, or execute a proxy or written consent, as the
case may be, in order to ensure that the Replacement Nominee is elected to the
Board.
Section 2.04. Meetings. The Board shall hold a regularly scheduled
meeting at least once every calendar quarter.
Section 2.05. Action by the Board. (a) A quorum of the Board shall
consist of three directors, of whom at least two must be designees of DLJMB;
provided that DLJMB shall have the right at any time to increase the number of
directors necessary to constitute a quorum of the Board.
(b) All actions of the Board shall require (i)the affirmative vote
of at least a majority of the directors present at a duly convened meeting of
the Board at which a quorum is present or (ii)the unanimous written consent of
the Board; provided that, in the event there is a vacancy on the Board and an
individual has been nominated to fill such vacancy, the first order of business
shall be to fill such vacancy.
(c) The Board may create executive, compensation, audit and such
other committees as it may determine. The DLJ Entities shall be entitled to
majority representation on any committee created by the Board.
Section 2.06. Conflicting Charter or Bylaw Provisions. Each
Stockholder shall vote its Shares or execute proxies or written consents, as
the case may be, and take all other actions necessary, to ensure that the
Companys Charter and Bylaws (i)facilitate, and do not at any time conflict
with, any provision of this Agreement and (ii) permit each Stockholder to
receive the benefits to which each such Stockholder is entitled under this
Agreement.
Section 2.07. Notice of Meeting; Participation. (a) Each director
will receive notice and the agenda of each meeting of the Board or any
committee thereof (even if such director is not a member of such committee) at
least 5 days prior to such meeting.
(b) Each DLJMB and CVC representative will be permitted to invite
alternates to participate in the meetings, provided such alternates will not be
permitted to vote at such meeting.
Section 2.08. Subsidiary Governance. Each of the Company and each
Stockholder agrees that, if and to the extent that two or more of the directors
of any subsidiary of the Company are designees of DLJMB, CVC shall have the
right to designate one director of the board of such subsidiary.
Section 2.09. Affiliate Transactions. The Company will not, and will
not permit any of its subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Company, unless such
transaction is on terms that are no less favorable to the Company or such
subsidiary than those that would have been obtained in a comparable transaction
by the Company or such subsidiary with an unrelated Person.
ARTICLE 3
Restrictions on Transfer
Section 3.01. General. (a) Each Stockholder understands and agrees
that the Company Securities purchased pursuant to the Subscription Agreements
have not been registered under the Securities Act and are restricted
securities. Each of the parties hereto agrees that it will not Transfer any
Company Securities (or solicit any offers in respect of any Transfer of any
Company Securities), except in compliance with the Securities Act and any
applicable foreign or state securities or "blue sky" laws.
(b) Until such time as CVC owns 10% or less of its Initial
Ownership of Common Shares, none of the CVC Entities shall Transfer any Company
Securities (or solicit any offers in respect of any Transfer of any Company
Securities), except (i) in a Public Offering, (ii) pursuant to a Transfer to
which Section 4.01 or Section 4.02 applies, or (iii) subject to Section 3.03,
to any Permitted Transferee thereof.
(c) Any attempt to Transfer any Company Securities not in
compliance herewith shall be null and void and the Company shall not, and shall
cause any transfer agent not to, give any effect in the Companys stock records
to such attempted Transfer.
(d) No Holder shall (i) grant any proxy or enter into or agree to
be bound by any voting trust or agreement with respect to the Company
Securities, except as expressly contemplated by this Agreement, (ii) enter into
any agreement or arrangement of any kind with any Person with respect to its
Company Securities inconsistent with the provisions of this Agreement or for
the purpose or with the effect of denying or reducing the rights of any other
Stockholder under this Agreement including, but not limited to, agreements or
arrangements with respect to the Transfer or voting of its Company Securities
or (iii) act, for any reason, as a member of a group or in concert with any
other Person in connection with the Transfer or voting of its Company
Securities in any manner which is inconsistent with the provisions of this
Agreement.
Section 3.02. Legends. (a) In addition to any other legend that may
be required, each certificate for Shares and each Warrant that is issued to any
Stockholder shall bear a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY FOREIGN OR STATE SECURITIES LAWS AND MAY NOT BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT
TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT
DATED AS OF AUGUST 14, 1998, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
INSILCO HOLDING CO. OR ANY SUCCESSOR THERETO."
(b) If any Company Securities shall cease to be Registrable
Securities under clause (i) or clause (ii) of the definition thereof, the
Company shall, upon the written request of the holder thereof, issue to such
holder a new certificate evidencing such securities without the first sentence
of the legend required by Section 3.02(a) endorsed thereon. If any Company
Securities cease to be subject to any and all restrictions on Transfer set
forth in this Agreement, the Company shall, upon the written request of the
holder thereof, issue to such holder a new certificate evidencing such Company
Securities without the second sentence of the legend required by Section
3.02(a) endorsed thereon.
Section 3.03. Permitted Transferees. Notwithstanding anything in
this Agreement to the contrary, any Stockholder may at any time Transfer any or
all of its Company Securities to one or more of its Permitted Transferees
without the consent of the Board or any other Stockholder or group of
Stockholders so long as (a) such Permitted Transferee shall have executed and
delivered to the Company an agreement to be bound by the terms of this
Agreement in the form of Exhibit A attached hereto and (b) the Transfer to such
Permitted Transferee is not in violation of applicable federal or state
securities laws.
ARTICLE 4
Tag-Along Rights; Drag-along Rights
Section 4.01. Rights to Participate in Transfer. (a) If the DLJ
Entities propose to Transfer Company Securities in a transaction otherwise
permitted by Article 3 hereof (a "Tag-Along Sale"), and if any Other
Stockholders own the type of Company Securities proposed to be sold by the DLJ
Entities, such Other Stockholders may, at their option, elect to exercise their
rights under this Section 4.01 (each such Other Stockholder, a "Tagging
Person"). In the event of such a proposed Transfer, the DLJ Entities shall
provide each Other Stockholder written notice of the terms and conditions of
such proposed Transfer ("Tag-Along Notice") and offer each Tagging Person the
opportunity to participate in such sale. The Tag-Along Notice shall identify
the number and type of Company Securities subject to the offer ("Tag-Along
Offer"), the price at which the Transfer is proposed to be made, and all other
material terms and conditions of the Tag- Along Offer, including the form of
the proposed agreement, if any. From the date of the receipt of the Tag-Along
Notice, each Tagging Person shall have the right (a "Tag-Along Right"),
exercisable by written notice ("Section 4.01 Response Notice") given to the DLJ
Entities within 15 Business Days (the "Tag-Along Notice Period"), to request
that the DLJ Entities include in the proposed Transfer the number of Company
Securities held by such Tagging Person as is specified in such notice; provided
that if the aggregate number of Company Securities proposed to be sold by the
DLJ Entities and all Tagging Persons in such transaction exceeds the number of
Company Securities which can be sold on the terms and conditions set forth in
the Tag-Along Notice, then only the Tag-Along Portion of Company Securities of
each Tagging Person shall be sold pursuant to the Tag-Along Offer and the DLJ
Entities shall sell its Tag-Along Portion of Company Securities and such
additional Company Securities as permitted by Section 4.01(d). If the Tagging
Persons exercise their Tag-Along Rights hereunder, each Tagging Person shall
deliver to the DLJ Entities, together with its Section 4.01 Response Notice,
the certificate or certificates representing the Company Securities of such
Tagging Person to be included in the Transfer, together with a limited
power-of-attorney authorizing the DLJ Entities to Transfer such Company
Securities on the terms set forth in the Tag-Along Notice. Delivery of such
certificate or certificates representing the Company Securities to be
transferred and the limited power-of-attorney authorizing the DLJ Entities to
Transfer such Company Securities shall constitute an irrevocable acceptance of
the Tag-Along Offer by such Tagging Persons. The Tagging Persons shall (a) be
required (i) to bear their proportionate share of any escrows, holdbacks or
adjustments in purchase price and (ii) to make such representations, warranties
and covenants and enter into such agreements as are customary for transactions
of the nature of the Tag-along Offer, in each case under the terms of any
definitive agreement(s) relating to such Tag-along Offer and (b) benefit from
all of the same provisions of the definitive agreements as the Selling Person.
If, at the end of a 90-day period after such delivery of the Section 4.01
Response Notice (which 90- day period shall be extended if any of the
transactions contemplated by the Tag- Along Offer are subject to regulatory
approval until the expiration of five Business Days after all such approvals
have been received, but in no event later than 180 days following the receipt
of the Section 4.01 Notice), the DLJ Entities have not completed the transfer
of all such Company Securities for at least 95% of the price set forth in the
Tag-Along Offer and otherwise on substantially the same terms and conditions
set forth in the Tag-Along Notice, the DLJ Entities shall (i) return to each
Tagging Person the limited power-of-attorney (and all copies thereof) together
with all certificates representing the Company Securities which such Tagging
Person delivered for Transfer pursuant to this Section 4.01and (ii) not conduct
any Transfer of Company Securities without again complying with this Section.
(b) Concurrently with the consummation of the Tag-Along Sale, the
DLJ Entities shall notify the Tagging Persons thereof, shall remit to the
Tagging Persons the total consideration (by bank or certified check) for the
Company Securities of the Tagging Persons transferred pursuant thereto, and
shall, promptly after the consummation of such Tag-Along Sale, furnish such
other evidence of the completion and time of completion of such Transfer and
the terms thereof as may be reasonably requested by the Tagging Persons.
(c) If at the termination of the Tag-Along Notice Period any
Tagging Person shall not have elected to participate in the Tag-Along Sale,
such Tagging Person will be deemed to have waived its rights under Section
4.01(a) with respect to the Transfer of its Company Securities pursuant to such
Tag-Along Sale.
(d) If any Tagging Person declines to exercise its Tag-Along Rights
or elects to exercise its Tag-Along Rights with respect to less than such
Tagging Person's Tag-Along Portion, the DLJ Entities shall be entitled to
Transfer, pursuant to the Tag-Along Offer, a number of Company Securities held
by the DLJ Entities equal to the number of Company Securities constituting the
portion of such Tagging Person's Tag-Along Portion with respect to which
Tag-Along Rights were not exercised.
(e) The DLJ Entities may sell, on behalf of themselves and any
Tagging Person who exercises the Tag-Along Rights pursuant to this Section
4.01, the Company Securities subject to the Tag-Along Offer and elected to be
sold on the terms and conditions set forth in the Tag-Along Notice (provided,
however, that the price payable in any such sale may exceed the price specified
in the Tag- Along Notice by up to 10%) within 120 days of the date on which all
Tag-Along Rights shall have been waived, exercised or expire.
(f) Notwithstanding anything contained in this Section 4.01, there
shall be no liability on the part of the DLJ Entities to the Tagging Persons
(other than the obligation to return any certificates evidencing Company
Securities received by any DLJ Entity) if the Transfer of Company Securities
pursuant to Section 4.01 is not consummated for whatever reason. Whether to
effect a Transfer of Company Securities pursuant to this Section 4.01 by the
DLJ Entities is in the sole and absolute discretion of the DLJ Entities.
(g) The provisions of this Section 4.01 shall not apply to any
Transfer or proposed Transfer of Company Securities by the DLJ Entities (i)
pursuant to Rule 144, (ii) to a Permitted Transferee of the DLJ Entities, or
(iii) pursuant to which Section 4.02 applies.
Section 4.02. Right to Compel Participation in Certain Transfers. (a)
If (i) the DLJ Entities propose to Transfer not less than 50% of their Initial
Ownership of any class of Company Securities to a Third Party in a bona fide
sale or (ii) the DLJ Entities propose a Transfer in which the Company
Securities to be transferred by the DLJ Entities constitute more than 50% of
the outstanding Company Securities in a particular class (a "Compelled Sale"),
the DLJ Entities may at their option require all Other Stockholders to sell the
Drag-Along Portion of such class of Company Securities ("Drag-Along Rights")
then held by every Other Stockholder, and in the case of a Compelled Sale
involving Common Shares (but subject to and at the closing of the Compelled
Sale) to exercise such number of options or Warrants for Common Shares held by
every Other Stockholder as is required in order that a sufficient number of
Common Shares are available to sell the relevant Drag-Along Portion of each
such Other Stockholder, for the same consideration per unit of the relevant
class of Company Security and otherwise on the same terms and conditions as the
DLJ Entities; provided that any Other Stockholder who holds options or Warrants
the exercise price per share of which is greater than the per share price at
which the Common Shares are to be sold to the Third Party may, if required by
the DLJ Entities to exercise such options, in place of such exercise, submit to
irrevocable cancellation thereof without any liability for payment of any
exercise price with respect thereto. If the Compelled Sale is not consummated
with respect to any Common Shares acquired upon exercise of such options or
Warrants, or the Compelled Sale is not consummated, such options or Warrants
shall be deemed not to have been exercised or canceled, as applicable. DLJ
Entities shall provide written notice of such Compelled Sale to the Other
Stockholders (a "Compelled Sale Notice") not later than the 15th day prior to
the proposed Compelled Sale. The Compelled Sale Notice shall identify the
transferee, the number of Company Securities, the consideration for which a
Transfer is proposed to be made (the "Compelled Sale Price") and all other
material terms and conditions of the Compelled Sale. The number of Company
Securities to be sold by each Other Stockholder will be the Drag-Along Portion
of the Common Shares and/or Warrants that such Other Stockholder owns. Each
Other Stockholder shall be required to participate in the Compelled Sale on the
terms and conditions set forth in the Compelled Sale Notice and to tender all
its Company Securities as set forth below. The price payable in such Transfer
shall be the Compelled Sale Price. Not later than the 10th day following the
date of the Compelled Sale Notice (the "Compelled Sale Notice Period"), each of
the Other Stockholders shall deliver to a representative of the DLJ Entities
designated in the Section 4.02 Notice certificates, and in the case of the
Warrants, the applicable instrument, representing all Company Securities
comprising the Drag-Along Portion held by such Other Stockholder, duly
endorsed, together with all other documents required to be executed in
connection with such Compelled Sale or, if such delivery is not permitted by
applicable law, an unconditional agreement to deliver such Company Securities
pursuant to this Section 4.02 at the closing for such Compelled Sale against
delivery to such Other Stockholder of the consideration therefor. If an Other
Stockholder should fail to deliver such certificates to the DLJ Entities, the
Company shall cause the books and records of the Company to show that such
Company Securities are bound by the provisions of this Section 4.02 and that
such Company Securities shall be transferred to the purchaser of such Company
Securities immediately upon surrender for Transfer by the holder thereof. The
Other Stockholders shall (a) be required (i) to bear their proportionate share
of any escrows, holdbacks or adjustments in purchase price and (ii) to make
such representations, warranties and covenants and enter into such agreements
as are customary for transactions of the nature of the Compelled Sale, in each
case under the terms of the definitive agreement(s) relating to such Compelled
Sale and (b) benefit from all of the same provisions of the definitive
agreements as the DLJ Entities.
(b) The DLJ Entities shall have a period of 90 days from the date
of receipt of the Compelled Sale Notice to consummate the Compelled Sale on the
terms and conditions set forth in such Compelled Sale Notice; provided that if
such Compelled Sale is subject to regulatory approval, such 90-day period shall
be extended until the expiration of 5 Business Days after all such approvals
have been received, but in no event later than 270 days following the effective
date of the Compelled Sale Notice. If the Compelled Sale shall not have been
consummated during such period, the DLJ Entities shall return to each of the
Other Stockholders all certificates representing Company Securities that such
Other Stockholder delivered for Transfer pursuant hereto, together with any
documents in the possession of the DLJ Entities executed by the Other
Stockholder in connection with such proposed Transfer, and all the restrictions
on Transfer contained in this Agreement or otherwise applicable at such time
with respect to such Company Securities owned by the Other Stockholders shall
again be in effect.
(c) Concurrently with the consummation of the Transfer of Company
Securities pursuant to this Section 4.02, the DLJ Entities shall give notice
thereof to all Stockholders, shall remit to each of the Stockholders who have
surrendered their certificates the total consideration (the cash portion of
which is to be paid by bank or certified check) for the Company Securities
transferred pursuant hereto and shall furnish such other evidence of the
completion and time of completion of such Transfer and the terms thereof as may
be reasonably requested by such Stockholders
(d) Notwithstanding anything contained in this Section 4.02, there
shall be no liability on the part of the DLJ Entities to the Other Stockholders
(other than the obligation to return any certificates representing Company
Securities received by any DLJ Entity) if the Transfer of Company Securities
pursuant to this Section 4.02 is not consummated for whatever reason,
regardless of whether the DLJ Entities have delivered a Compelled Sale Notice.
Whether to effect a Transfer of Company Securities pursuant to this Section
4.02 by the DLJ Entities is in the sole and absolute discretion of the DLJ
Entities.
ARTICLE 5
Registration Rights
Section 5.01. Demand Registration. (a) If the Company shall receive a
written request from either DLJMB on behalf of the DLJ Entities or, in the case
of a CVC Demand, CVC on behalf of the CVC Entities (the DLJ Entities or, in
respect of a CVC Demand, the CVC Entities, shall be referred to herein as a
"Requesting Stockholder") that the Company effect the registration under the
Securities Act of all or a portion of such Requesting Stockholder's Registrable
Securities, and specifying the intended method of disposition thereof, then the
Company shall promptly give written notice of such requested registration (each
such request, including the CVC Demand, shall be referred to herein as a "Demand
Registration") at least 15 days prior to the anticipated filing date of the
registration statement relating to such Demand Registration to the Other
Stockholders and thereupon will use its best efforts to effect, as
expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by the Requesting Stockholder; and
(ii) subject to the restrictions set forth in Section 5.02, all
other Registrable Securities of the same class as that requested to be
registered by the Requesting Stockholder which any Other Stockholder
entitled to request the Company to effect an Incidental Registration
pursuant to Section 5.02 (all such Stockholders, together with the
Requesting Stockholder, the "Holders") has requested that the Company
register by written request received by the Company within 15 days
after the receipt by such Holders of such written notice given by the
Company,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered; provided that, subject to Section 5.01(d) hereof, the Company shall
(i) not be obligated to effect more than five Demand Registrations for the DLJ
Entities, (ii) be obligated to effect one Demand Registration for the CVC
Entities (the "CVC Demand") which shall be exercisable by CVC on behalf of any
CVC Entities only if immediately prior thereto (A) the Transfer Percentage of
the CVC Entities is less than the Transfer Percentage of the DLJ Entities and
(B) the DLJ Entities have transferred (other than to any of their Permitted
Transferees) 70% or more of the sum of (x) their collective Initial Ownership
of Common Stock and (y) any additional shares of Common Stock issued by the
Company to the DLJ Entities after the date hereof in an issuance of Common
Stock that was offered to the DLJ Entities and the CVC Entities on a pro rata
basis and (iii) not be obligated to effect any Demand Registration unless the
aggregate proceeds expected to be received from the sale of the Common Stock to
be included in such Demand Registration, in the reasonable opinion of DLJSC
exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand
Registration would constitute the First Public Offering, or (y) $25,000,000 in
all other cases. In no event will the Company be required to effect more than
one Demand Registration hereunder within any four-month period.
(b) Promptly after the expiration of the 15-day period referred to
in Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be
included in the Demand Registration of the other Holders and the number of
Registrable Securities requested to be included therein. The Requesting
Stockholder may, at any time prior to the effective date of the registration
statement relating to such registration, revoke such request, without liability
to any of the other Stockholders, by providing a written notice to the Company
revoking such request, in which case such request, so revoked, shall be
considered a Demand Registration unless the participating Stockholders
reimburse the Company for all costs incurred by the Company in connection with
such registration, or unless such revocation arose out of the fault of the
Company, in which case such request shall not be considered a Demand
Registration and the Company shall be obligated to pay all Registration
Expenses in connection with such revoked request.
(c) The Company will be liable for and pay all Registration
Expenses in connection with any Demand Registration pursuant to this Section
5.01, regardless of whether it is effected.
(d) A Demand Registration shall not be deemed to have occurred
unless the registration statement relating thereto (A) has become effective
under the Securities Act and (B) has remained effective for a period of at
least 180 days without being subject to any stop order, injunction, or other
order or requirement of the Commission or any other governmental authority for
any reason (or such shorter period in which all Registrable Securities of the
Holders requested to be included in such registration have actually been sold
thereunder).
(e) If a Demand Registration involves an underwritten Public
Offering and the managing underwriter shall advise the Company and the
Requesting Stockholder that, in its view, (i) the number of Registrable
Securities requested to be included in such registration (including any
securities which the Company proposes to be included which are not Registrable
Securities) or (ii) the inclusion of some or all of the Registrable Securities
owned by the Holders, in any such case, exceeds the largest number of
securities which can be sold without having an adverse effect on such offering,
including the price at which such securities can be sold (the "Maximum Offering
Size"), the Company will include in such registration, in the priority listed
below, up to the Maximum Offering Size:
(i) first, all Registrable Securities requested to be registered by
the Requesting Stockholder and all Registrable Securities requested to
be included in such registration by any other Holder (allocated, if
necessary for the offering not to exceed the Maximum Offering Size,
pro rata, among such Holders on the basis of the relative number of
Registrable Securities so requested to be included in such
registration); provided that if the Transfer Percentage of CVC is less
than the Transfer Percentage of the DLJ Entities collectively at such
time, the amount of Registrable Securities which will be allocable to
CVC pursuant to this subsection shall be increased by an amount such
that, after giving effect to the sale of all Registrable Securities in
such offering, the Transfer Percentage of CVC would equal the Transfer
Percentage of the DLJ Entities collectively;
(ii) second, any securities proposed to be registered by the
Company; and
(iii) third, any securities proposed to be registered for the account
of any other Persons with such priorities among them as the Company
shall determine.
(f) If, in connection with any Demand Registration pursuant to
this Section with respect to the Common Shares or Preferred Shares, any
Requesting Stockholder shall seek to Transfer any Warrants together with Common
Shares or Preferred Shares, the Company shall at the request of any such
Stockholder effect a registration of such Warrants to which the provisions of
this Article 5 shall apply mutatis mutandis and a registration, pursuant to a
shelf registration statement, so as to permit the resale of the Common Shares
for which any Warrants so transferred may be exercisable. The Company shall
maintain the effectiveness of any such shelf registration statement, and take
all actions necessary to permit resale of such Common Shares as may be required
by applicable state securities laws.
Section 5.02. Incidental Registration. (a) If the Company proposes
to register any Company Securities under the Securities Act (other than a
registration on Forms S-8 or S-4 or any successor or similar forms), whether or
not for sale for its own account, it will each such time, subject to the
provisions of Section 5.02(b), give prompt written notice at least 30 days
prior to the anticipated filing date of the registration statement relating to
such registration to all Stockholders, which notice shall set forth such
Stockholder's rights under this Section 5.02 and shall offer such Stockholders
the opportunity to include in such registration statement such number of
Registrable Securities of the same type as are proposed to be registered as
each such Stockholder may request (an "Incidental Registration"). Upon the
written request of any such Stockholder made within 15 days after the receipt
of notice from the Company (which request shall specify the number of
Registrable Securities intended to be disposed of by such Stockholder), the
Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by such Stockholders, to the extent requisite to permit
the disposition of the Registrable Securities so to be registered; provided
that (i) if such registration involves an underwritten Public Offering, all
such Stockholders requesting to be included in the Company's registration must
sell their Registrable Securities to the underwriters selected as provided in
Section 5.04(f) on the same terms and conditions as apply to the Company and
(ii) if, at any time after giving written notice of its intention to register
any Company Securities pursuant to this Section 5.02(a) and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register such
securities, the Company shall give written notice to all such Stockholders and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration. No registration effected
under this Section 5.02 shall relieve the Company of its obligations to effect
a Demand Registration to the extent required by Section5.01. The Company will
pay all Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 5.02.
(b) If a registration pursuant to this Section 5.02 involves an
underwritten Public Offering (other than any Demand Registration in which case
the provisions with respect to priority of inclusion in such offering set forth
in Section 5.01 shall apply) and the managing underwriter advises the Company
that, in its view, the number of Shares that the Company and such Stockholders
intend to include in such registration exceeds the Maximum Offering Size, the
Company will include in such registration, in the following priority, up to the
Maximum Offering Size:
(i) first, so much of the securities proposed to be registered by
the Company as would not cause the offering to exceed the Maximum
Offering Size;
(ii) second, all Registrable Securities requested to be included in
such registration statement by the Holders (allocated, if necessary
for the offering not to exceed the Maximum Offering Size, pro rata
among such entities on the basis of the relative number of shares of
Registrable Securities requested to be so included in such
registration); provided that if the Transfer Percentage of CVC is less
than the Transfer Percentage of the DLJ Entities collectively at such
time, the amount of Registrable Securities which will be allocable to
CVC pursuant to this subsection shall be increased by an amount such
that, after giving effect to the sale of all Registrable Securities in
such offering, the Transfer Percentage of CVC would equal the Transfer
Percentage of the DLJ Entities collectively; and
(iii) third, any securities proposed to be registered for the account
of any other Persons with such priorities among them as the Company
shall determine.
Section 5.03. Holdback Agreements. If any registration of
Registrable Securities shall be in connection with a Public Offering, each DLJ
Entity, each Other Stockholder and the Company agree not to effect any public
sale or distribution, including any sale pursuant to Rule 144, or any successor
provision, under the Securities Act, of any Registrable Securities, and not to
effect any such public sale or distribution of any other Common Stock of the
Company or of any stock convertible into or exchangeable or exercisable for any
Common Stock of the Company (in each case, other than as part of such Public
Offering) during the 14 days prior to the effective date of such registration
statement (except as part of such registration) or during the period after such
effective date equal to the lesser of (i) such period of time as the Company
and the lead managing underwriter of an underwritten Public Offering agree and
(ii) 180 days (such lesser period, the "Applicable Holdback Period").
Section 5.04. Registration Procedures. Whenever Stockholders request
that any Registrable Securities be registered pursuant to Section 5.01 or 5.02,
the Company will, subject to the provisions of such Sections, use its best
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof as quickly as
practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file
with the SEC a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which
form shall be available for the sale of the Registrable Securities to be
registered thereunder in accordance with the intended method of distribution
thereof, and use its best efforts to cause such filed registration statement to
become and remain effective for a period of not less than 180 days (or such
shorter period in which all Registrable Securities of the Holders included in
such registration statement shall have actually been sold thereunder).
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to each
participating Stockholder and each underwriter, if any, of the Registrable
Securities covered by such registration statement copies of such registration
statement as proposed to be filed, and thereafter the Company will furnish to
such Stockholder and underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such Stockholder or
underwriter may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Stockholder.
(c) After the filing of the registration statement, the Company
will (i)cause the related prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, (ii) comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement or supplement to such prospectus and (iii) promptly
notify each Stockholder holding Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC or any
state securities commission under state blue sky laws and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered.
(d) The Company will use its best efforts to (i) register or
qualify the Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions in the United
States as any Stockholder holding such Registrable Securities reasonably (in
light of such Stockholders intended plan of distribution) requests and (ii)
cause such Registrable Securities to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Stockholder to
consummate the disposition of the Registrable Securities owned by such
Stockholder; provided that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (B) subject itself to taxation
in any such jurisdiction or (C) consent to general service of process in any
such jurisdiction.
(e) The Company will immediately notify each Stockholder holding
such Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the occurrence of an
event requiring the preparation of a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and promptly prepare
and make available to each such Stockholder any such supplement or amendment.
(f) (i) DLJMB will have the right to select an underwriter or
underwriters in connection with any Public Offering resulting from the exercise
by DLJMB on behalf of any DLJ Entity of a Demand Registration, which
underwriter or underwriters may include any Affiliate of any DLJ Entity,
(ii)CVC will have the right to select an underwriter or underwriters in
connection with the CVC Demand, which selection shall be subject to the
approval of the Company, which approval shall not be unreasonably withheld, and
(iii) the Company will select an underwriter or underwriters in connection with
any other Public Offering. In connection with any Public Offering, the Company
will enter into customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of Registrable Securities in any such
Public Offering, including the engagement of a "qualified independent
underwriter" in connection with the qualification of the underwriting
arrangements with the NASD.
(g) Upon the execution of confidentiality agreements in form and
substance reasonably satisfactory to the Company, the Company will make
available for inspection by any Stockholder and any underwriter participating
in any disposition pursuant to a registration statement being filed by the
Company pursuant to this Section 5.04 and any attorney, accountant or other
professional retained by any such Stockholder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably necessary or desirable to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any Inspectors in
connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Stockholder agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used
by it as the basis for any market transactions in the Company Securities or its
Affiliates unless and until such is made generally available to the public.
Each Stockholder further agrees that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to each such Stockholder and to each
such underwriter, if any, a signed counterpart, addressed to each such
Stockholder or underwriter, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such
matters of the type customarily covered by opinions or comfort letters, as the
case may be, as a majority of such Stockholders or the managing underwriter
therefor reasonably requests.
(i) The Company will otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
stockholders, as soon as reasonably practicable, consolidated statements
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which consolidated statements
shall satisfy the provisions of Section 11(a) of the Securities Act.
(j) The Company may require each such Stockholder to promptly
furnish in writing to the Company such information regarding the distribution
of the Registrable Securities as the Company may from time to time reasonably
request and such other information as may be legally required in connection
with such registration.
(k) Each such Stockholder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
5.04(e), such Stockholder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Stockholder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 5.04(e), and, if so directed by the
Company, such Stockholder will deliver to the Company all copies, other than
any permanent file copies then in such Stockholder's possession, of the most
recent prospectus covering such Registrable Securities at the time of receipt
of such notice. In the event that the Company shall give such notice, the
Company shall extend the period during which such registration statement shall
be maintained effective (including the period referred to in Section5.04(a)) by
the number of days during the period from and including the date of the giving
of notice pursuant to Section 5.04(e) to the date when the Company shall make
available to such Stockholder a prospectus supplemented or amended to conform
with the requirements of Section 5.04(e).
Section 5.05. Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Stockholder holding Registrable Securities
covered by a registration statement, its officers, directors and agents, and
each Person, if any, who controls such Stockholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
any registration statement or prospectus relating to the Registrable Securities
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished in writing to the Company by such Stockholder or any
other Stockholder or on such Stockholder's behalf or on behalf of any other
Stockholder expressly for use therein; provided that with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus, or in any prospectus, as the case may be, the indemnity
agreement contained in this paragraph shall not apply to the extent that any
such loss, claim, damage, liability or expense results from the fact that a
current copy of the prospectus (or such amended or supplemented prospectus as
the case may be) was not sent or given to the person asserting any such loss,
claim, damage, liability or expense at or prior to the written confirmation of
the sale of the Registrable Securities concerned to such person if it is
determined that the Company has provided such prospectus and it was the
responsibility of such Stockholder to provide such person with a current copy
of the prospectus (or such amended or supplemented prospectus, as the case may
be) and such current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) would have cured the defect giving rise to such
loss, claim, damage, liability or expense. The Company also agrees to
indemnify any underwriters of the Registrable Securities, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Stockholders provided in this
Section 5.05.
Section 5.06. Indemnification by Participating Stockholders. Each
Stockholder holding Registrable Securities included in any registration
statement agrees, severally but not jointly, to indemnify and hold harmless the
Company, its officers, directors and agents and each Person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Stockholder, but only (i) with respect to
information furnished in writing by such Stockholder or on such Stockholder's
behalf expressly for use in any registration statement or prospectus relating
to the Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus or (ii) to the extent that any loss, claim, damage,
liability or expense described in Section 5.05 results from the fact that a
current copy of the prospectus (or such amended or supplemented prospectus, as
the case may be) was not sent or given to the Person asserting any such loss,
claim, damage, liability or expense at or prior to the written confirmation of
the sale of the Registrable Securities concerned to such person if it is
determined that it was the responsibility of such Stockholder to provide such
person with a current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) and such current copy of the prospectus (or
such amended or supplemented prospectus, as the case may be) would have cured
the defect giving rise to such loss, claim, damage, liability or expense. Each
such Stockholder also agrees to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 5.06. As a condition
to including Registrable Securities in any registration statement filed in
accordance with Article 5 hereof, the Company may require that it shall have
received an undertaking reasonably satisfactory to it from any underwriter to
indemnify and hold it harmless to the extent customarily provided by
underwriters with respect to similar securities. No Stockholder shall be
liable under this Section 5.06 for any loss, claim, damage, liability or
expense in excess of the net proceeds realized by such Stockholder in the sale
of the Registrable Securities of such Stockholder to which such loss, claim,
damage, liability or expense relates.
Section 5.07. Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
this Article 5, such person (an "Indemnified Party") shall promptly notify the
person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party,
and shall assume the payment of all fees and expenses; provided that the
failure of any Indemnified Party so to notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations hereunder except to the
extent that the Indemnifying Party is materially prejudiced by such failure to
notify. In any such proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel
or (ii) in the reasonable judgment of such Indemnified Party representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Parties, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Indemnified Parties, such firm shall be designated in
writing by the Indemnified Parties. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent, or if there be a final judgment for the
plaintiff, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent
stated above) by reason of such settlement or judgment. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such proceeding.
Section 5.08. Contribution. If the indemnification provided for in
this Article 5 is unavailable to the Indemnified Parties in respect of any
losses, claims, damages or liabilities referred to herein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (i) as between the Company and
the Stockholders holding Registrable Securities covered by a registration
statement on the one hand and the underwriters on the other, in such proportion
as is appropriate to reflect the relative benefits received by the Company and
such Stockholders on the one hand and the underwriters on the other, from the
offering of the Registrable Securities, or if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits but also the relative fault of the Company and such
Stockholders on the one hand and of such underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations and (ii) as between the Company on the one hand and each such
Stockholder on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of each such Stockholder in connection with
such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by the Company and such
Stockholders on the one hand and such underwriters on the other shall be deemed
to be in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and such Stockholders bear to the total underwriting discounts
and commissions received by such underwriters, in each case as set forth in the
table on the cover page of the prospectus. The relative fault of the Company
and such Stockholders on the one hand and of such underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and
such Stockholders or by such underwriters. The relative fault of the Company
on the one hand and of each such Stockholder on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such party, and the parties
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Stockholders agree that it would not be just and
equitable if contribution pursuant to this Section 5.08 were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 5.08, no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
Stockholder shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities of such
Stockholder were offered to the public exceeds the amount of any damages which
such Stockholder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Each such Stockholder's obligation
to contribute pursuant to this Section 5.08 is several in the proportion that
the proceeds of the offering received by such Stockholder bears to the total
proceeds of the offering received by all such Stockholders and not joint.
Section 5.09. Participation in Public Offering. No Person may
participate in any Public Offering hereunder unless such Person (i) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (ii)completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and the provisions
of this Agreement in respect of registration rights.
Section 5.10. Other Indemnification. Indemnification similar to that
specified herein (with appropriate modifications) shall be given by the Company
and each Stockholder participating therein with respect to any required
registration or other qualification of securities under any federal or state
law or regulation or governmental authority other than the Securities Act.
Section 5.11. Cooperation by the Company. In the event any
Stockholder shall Transfer any Registrable Securities pursuant to Rule 144
under the Securities Act, the Company shall cooperate, to the extent
commercially reasonable, with such Stockholder and shall provide to such
Stockholder such information as such Stockholder shall reasonably request.
Section 5.12. No Transfer of Registration Rights. None of the rights
of Stockholders under this Article 5 shall be assignable by any Stockholder to
any Person to which such Stockholder transferred Registrable Securities in any
Public Offering or pursuant to Rule 144 of the Securities Act.
ARTICLE 6
Miscellaneous
Section 6.01. Entire Agreement. This Agreement and the Subscription
Agreements, together with any schedules, exhibits, annexes or appendices hereto
or thereto, constitute the entire agreement among the parties hereto and
supersede all prior agreements and understandings, oral and written, among the
parties hereto with respect to the subject matter hereof.
Section 6.02. Binding Effect; Benefit. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, successors, legal representatives and permitted assigns. Nothing in
this Agreement, expressed or implied, shall confer on any Person other than the
parties hereto, and their respective heirs, successors, legal representatives
and permitted assigns, any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
Section 6.03. Confidentiality. (a) Each Stockholder agrees that
Confidential Information (as defined below) furnished and to be furnished to it
was and will be made available in connection with such Stockholder's investment
in the Company. Each Stockholder acknowledges and agrees that it will not
disclose any Confidential Information to any Person; provided that Confidential
Information may be disclosed (i) to such Stockholders Representatives (as
defined below) in the normal course of the performance of their duties or to
any financial institution providing credit to such Stockholder, (ii) to the
extent required by applicable law, rule or regulation (including complying with
any oral or written questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process to which a
Stockholder is subject; provided that such Stockholder gives the Company prompt
notice of such request(s), to the extent practicable, so that the Company may
seek an appropriate protective order or similar relief), (iii) to any Person to
whom such Stockholder is contemplating a Transfer of its Company Securities
(provided that such Transfer would not be in violation of the provisions of
this Agreement and as long as such potential transferee is advised of the
confidential nature of such information and agrees to be bound by a
confidentiality agreement in form and substance satisfactory to the Company (it
being understood that a confidentiality agreement consistent with the
provisions hereof shall be satisfactory to the Company)) or (iv)to any
regulatory authority to which the Stockholder or any of its affiliates is
subject of with which it has regular dealings if the prior written consent of
the Board shall have been obtained. Nothing contained herein shall prevent the
use (subject, to the extent possible, to a protective order) of Confidential
Information in connection with the assertion or defense of any claim by or
against the Company or any Stockholder. The Company will furnish to directors
of the Company, as soon as they become prepared on a regular basis, monthly
management accounts in such form and containing such information as the Board
shall specify.
(b) "Confidential Information" means any information concerning the
Company and Persons which are or become its subsidiaries or the financial
condition, business, operations or prospects of the Company and Persons which
are or become its subsidiaries in the possession of or furnished to any
Stockholder (including, without limitation by virtue of its present or former
right to designate a director of the Company); provided that the term
"Confidential Information" does not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by a
Stockholder or its partners, directors, officers, employees, agents, counsel,
investment advisors or representatives (all such persons being collectively
referred to as "Representatives") in violation of this Agreement, (ii) is or
was available to such Stockholder on a nonconfidential basis prior to its
disclosure to such Stockholder or its Representatives by the Company or (iii)
was or becomes available to such Stockholder on a non-confidential basis from a
source other than the Company, provided that such source is or was at the time
of receipt of the relevant information not, to the best of such Stockholders
knowledge, bound by a confidentiality agreement with the Company or another
Person.
Section 6.04. Exclusive Financial and Investment Banking Advisor.
During the period from and including the date hereof until the earlier of (i)
the fifth anniversary of the date hereof and (ii) the date that the DLJ
Entities own less than 5% of their Initial Ownership of Common Shares,
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJSC"), or any Affiliate
of DLJSC that the DLJ Entities may choose in their sole discretion, shall be
engaged as the exclusive financial and investment banking advisor of the
Company. DLJSC or such Affiliate shall be entitled to reimbursement from the
Company for all expenses incurred by DLJSC or such Affiliate (including,
without limitation, fees and expenses of counsel) as financial and investment
banking advisor of the Company.
Section 6.05. Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by any party hereto pursuant to any Transfer of Company Securities
or otherwise, except that any Permitted Transferee acquiring Company Securities
shall (unless already bound hereby) execute and deliver to the Company an
agreement to be bound by this Agreement in the Form of Exhibit A hereto and
shall thenceforth be a "Stockholder". Any Stockholder who ceases to own
beneficially any Shares shall cease to be bound by the terms hereof (other than
(i)the provisions of Sections 5.05, 5.06, 5.07, 5.08, and 5.10 applicable to
such Stockholder with respect to any offering of Registrable Securities
completed before the date such Stockholder ceased to own any Company Securities
and (ii) Sections 6.03, 6.11 and 6.12).
Section 6.06. Amendment; Waiver; Termination. No provision of this
Agreement may be waived except by an instrument in writing executed by the
party against whom the waiver is to be effective. No provision of this
Agreement may be amended or otherwise modified except by an instrument in
writing executed by the Company with the approval of the Board and Stockholders
holding at least 75% of the outstanding Common Shares held by the parties
hereto at the time of such proposed amendment or modification; provided that
any amendment or modification which adversely and disproportionately affects
the rights of any party hereto must be approved by such party.
Section 6.07. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmissions and shall be given,
if to the Company, to:
Insilco Holding Co.
425 Metro Place North
5th Floor
Dublin, Ohio 43017
Attention: Kenneth Koch
Telecopy: (614) 791-3195
with a copy to the DLJ Entities at the address listed below.
if to the DLJ Entities, to:
DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, New York 10172
Attention: William F. Dawson, Jr.
Fax: (212) 892-7553
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: John W. Buttrick
Fax: (212) 450-4800
if to CVC, to:
399 Venture Partners, Inc.
c/o Citicorp Venture Capital, Ltd.
399 Park Avenue
14th Floor
New York, NY 10043
Attention: David Y. Howe
Fax: 212-888-2940
with a copy to:
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Attention: Christopher G. Karras
Fax: 215-994-2222
All notices, requests and other communications shall be deemed received
on the date of receipt by the recipient thereof if received prior to 5:00 p.m.
in the place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
Any notice, request or other written communication sent by facsimile
transmission shall be confirmed by certified mail, return receipt requested,
posted within one Business Day, or by personal delivery, whether courier or
otherwise, made within two Business Days after the date of such facsimile
transmission.
Any Person who becomes a Stockholder shall provide its address and fax
number to the Company, which shall promptly provide such information to each
other Stockholder.
Section 6.08. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
Section 6.09. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE.
Section 6.10. Specific Enforcement. Each party hereto acknowledges
that the remedies at law of the other parties for a breach or threatened breach
of this Agreement would be inadequate and, in recognition of this fact, any
party to this Agreement, without posting any bond, and in addition to all other
remedies which may be available, shall be entitled to obtain equitable relief
in the form of specific performance, a temporary restraining order, a temporary
or permanent injunction or any other equitable remedy which may then be
available.
Section 6.11. Consent to Jurisdiction. Any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby may be brought in the United States District Court for the District of
Delaware or any other Delaware State court sitting in Wilmington, and each of
the parties hereby consents to the non-exclusive jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 6.07 shall
be deemed effective service of process on such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
INSILCO HOLDING CO.
By: /s/ Kenneth H. Koch
--------------------------------
Name: Kenneth H. Koch
Title: Vice President and Secretary
DLJ MERCHANT BANKING
PARTNERS II, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ MERCHANT BANKING
PARTNERS II-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ OFFSHORE PARTNERS II, C.V.
BY DLJ MERCHANT BANKING II, INC.,
Advisory General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ DIVERSIFIED PARTNERS, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ DIVERSIFIED PARTNERS-A, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJMB FUNDING II, INC.
By: /s/ William F. Dawson, Jr.
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ EAB PARTNERS, L.P.
BY DLJ LBO PLANS MANAGEMENT CORPORATION,
General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ MILLENNIUM PARTNERS, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
UK INVESTMENT PLAN 1997
PARTNERS
DONALDSON, LUFKIN & JENRETTE, INC.,
General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ FIRST ESC, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ ESC II, L.P.
BY DLJ LBO PLANS MANAGEMENT CORPORATION,
as General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ MILLENNIUM PARTNERS-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ William F. Dawson, Jr.
--------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
399 VENTURE PARTNERS, INC.
By: /s/ David Y. Howe
--------------------------------
Name: David Y. Howe
Title: Vice President
EXHIBIT A
[FORM OF AGREEMENT TO BE BOUND]
[Date]
To the Parties to the Investors'
Agreement dated as of August __, 1998
Ladies and Gentlemen:
Reference is made to the Investors' Agreement dated as of August __,
1998 (the "Investors' Agreement") among Insilco Holding Co. and the other
Persons listed on the signature pages thereof and each other Person who has or
shall become a party to the Investors' Agreement as provided therein.
Capitalized terms used herein and not defined have the meanings ascribed to them
in the Investors' Agreement.
In consideration of the covenants and agreements contained in the
Investors' Agreement, the undersigned hereby confirms and agrees that it shall
be bound as a "Stockholder" by all of the provisions thereof.
This letter shall be construed and enforced in accordance with the
internal laws of the State of Delaware.
Very truly yours,
EXHIBIT 99.6
SUBSCRIPTION AGREEMENT
dated as of
August 17, 1998
among
INSILCO HOLDING CO.
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
15% Senior Exchangeable Preferred Stock due 2010
and
Warrants to purchase Common Stock
of
Insilco Holding Co.
TABLE OF CONTENTS
----------------------
Page
ARTICLE 1
Definitions
Section 1.01. Definitions.....................................................2
ARTICLE 2
Purchase and Sale
Section 2.01. Purchase and Sale...............................................3
Section 2.02. Closing.........................................................4
ARTICLE 3
Representations and Warranties of ExistingSub
Section 3.01. Corporate Existence and Power...................................4
Section 3.02. Corporate Authorization.........................................4
Section 3.03. Governmental Authorization......................................5
Section 3.04. Noncontravention................................................5
Section 3.05. Capitalization and Voting Rights................................5
Section 3.06. Valid Issuance of Securities....................................6
Section 3.07. Litigation......................................................6
ARTICLE 4
Representations and Warranties of Buyers
Section 4.01. Existence and Power.............................................6
Section 4.02. Authorization...................................................7
Section 4.03. Governmental Authorization......................................7
Section 4.04. Purchase for Investment.........................................7
Section 4.05. Private Placement...............................................7
Section 4.06. Litigation......................................................8
Section 4.07. Brokers or Finders' Fees........................................8
ARTICLE 5
Miscellaneous
Section 5.01. Rule 144A Resales...............................................9
Section 5.02. Notices........................................................10
Section 5.03. Amendments and Waivers.........................................11
Section 5.04. Successors and Assigns.........................................11
Section 5.05. Governing Law..................................................11
Section 5.06. Jurisdiction...................................................11
Section 5.07. Waiver Of Jury Trial...........................................12
Section 5.08. Counterparts; Third Party Beneficiaries........................12
Section 5.09. Entire Agreement...............................................12
Section 5.10. Severability...................................................12
Schedule A Schedule of Buyers, Purchase Price and Company Securities
Exhibit A Certificate of Incorporation of Insilco Holding Co.
Exhibit B Form of Warrant
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of August 17, 1998 between Insilco Holding Co., a
Delaware corporation ("ExistingSub") and the Persons named on Schedule A hereto
(each a "Buyer" and collectively, the "Buyers").
W I T N E S S E T H :
WHEREAS, Insilco ReorgSub Company, a wholly-owned subsidiary of
ExistingSub, has merged (the "Reorganization Merger") with and into Insilco
Corporation ("Insilco") with Insilco continuing as the surviving corporation and
as a wholly-owned subsidiary of ExistingSub on the terms and conditions set
forth in the Agreement and Plan of Merger dated as of March 24, 1998 between
ExistingSub, Insilco and Silkworm Acquisition Corporation ("MergerSub") (as the
same may be or have been amended from time to time, the "Merger Agreement");
WHEREAS, immediately following the effective time of the Reorganization
Merger, MergerSub will merge (the "Merger") with and into ExistingSub on the
terms and conditions set forth in the Merger Agreement;
WHEREAS, to finance a portion of the consideration payable in the
Merger, ExistingSub intends to issue shares of 15% Senior Exchangeable Preferred
Stock due 2010, par value $0.001 per share (the "Preferred Stock"), and warrants
to purchase shares of common stock, par value $0.001 per share (the "Warrants"
and, together with the Preferred Stock, the "Securities"); and
WHEREAS, ExistingSub desires to issue and sell the relevant Securities
to the Buyers, and each of the Buyers desires to purchase the relevant
Securities from ExistingSub, upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person. For the purposes of this definition, the term "control" (including
its correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banking institutions in New York, New York are authorized or required
by law to close.
"Closing Date" means the date of the Closing.
"Common Shares" means shares of common stock, par value $0.001 per
share.
"CVC" means 399 Venture Partners, Inc., a wholly owned indirect
subsidiary of Citibank, N.A.
"DLJMB Entities" means DLJMB and the affiliated funds and entities
listed on the signature pages hereof.
"Effective Time" has the meaning ascribed thereto in the Merger
Agreement.
"Investors' Agreement" means the Investors' Agreement to be entered
into on the Closing Date among the Company, the DLJMB Entities and CVC.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or adverse claim of any
kind in respect of such property or asset.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Preferred Shares" means shares of Preferred Stock.
"Transaction Documents" means this Agreement, the Merger Agreement, the
Investors' Agreement and the Warrants.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Buyer Recitals
Certificate of Incorporation 3.08
Closing 2.02
Company Recitals
DLJMB Recitals
ExistingSub Recitals
Insilco Recitals
Merger Recitals
MergerSub Recitals
Merger Agreement Recitals
Preferred Stock Recitals
Purchase Price 2.01
Reorganization Merger Recitals
Securities Recitals
Warrants Recitals
ARTICLE 2
Purchase and Sale
Section 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, at the Effective Time, ExistingSub agrees to issue
and sell to each Buyer and each Buyer agrees, severally and not jointly, to
purchase from ExistingSub the Securities set forth opposite such Buyer's name on
Schedule A hereto. The purchase price for the Securities (the "Purchase Price")
is the amount in cash specified on Schedule A hereto. The sale of the Securities
and the payment of the Purchase Price shall be effected as provided in Section
2.02.
Section 2.02. Closing. The closing (the "Closing") of the purchase and
sale of the Securities hereunder shall take place at the offices of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York. At the Closing:
(a) Each Buyer shall deliver to ExistingSub, in immediately available
funds, the amount of the aggregate Purchase Price set forth opposite such
Buyer's name on Schedule A hereto, by wire transfer (or other means acceptable
to ExistingSub) to an account of ExistingSub with a bank in New York City
designated by ExistingSub, by notice to such Buyer.
(b) ExistingSub shall deliver to each Buyer certificates, or other
appropriate documentation, for the relevant Securities free and clear of any
Liens and preemptive rights and duly registered in the name of such Buyer.
ARTICLE 3
Representations and Warranties of ExistingSub
ExistingSub represents and warrants to each Buyer as of the date hereof
and as of the Closing Date that:
Section 3.01. Corporate Existence and Power. ExistingSub is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted and as proposed to be conducted following the
Merger.
Section 3.02. Corporate Authorization. The execution, delivery and
performance by ExistingSub of each of the relevant Transaction Documents and the
consummation of the transactions contemplated hereby and thereby (including the
issuance and sale of the Securities) are within ExistingSub's corporate powers
and have been duly authorized by all necessary corporate action on the part of
ExistingSub. Each of the relevant Transaction Documents constitutes or, when
executed, will constitute, a valid and binding agreement of ExistingSub,
enforceable against ExistingSub in accordance with its terms, except as limited
by (i) applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement or creditors' rights
generally, or (ii) laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
Section 3.03. Governmental Authorization. Except for compliance with
the matters referred to in Sections 3.03 and 4.03 of the Merger Agreement, the
execution, delivery and performance by ExistingSub of each of the relevant
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby require no order, license, consent, authorization or approval
of, or exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official.
Section 3.04. Noncontravention. The execution, delivery and performance
by ExistingSub of each of the relevant Transaction Documents and the
consummation of the transactions contemplated hereby and thereby do not and will
not (i) violate the certificate of incorporation or bylaws of ExistingSub, (ii)
violate any applicable law, rule, regulation, judgment, injunction, order or
decree, (iii) require any consent or other action by any Person under,
constitute a default under (with due notice or lapse of time or both), or give
rise to any right of termination, cancellation or acceleration of any right or
obligation of ExistingSub or to a loss of any benefit to which ExistingSub is
entitled under any provision of any agreement or other instrument binding upon
ExistingSub or any of ExistingSub's assets or properties or (iv) result in the
creation or imposition of any material Lien on any property or asset of
ExistingSub.
Section 3.05. Capitalization and Voting Rights. (a) At the Effective
Time, the authorized capital stock of ExistingSub shall consist of 15,000,000
Common Shares and 3,000,000 Preferred Shares and the outstanding capital stock
of ExistingSub will be 1,385,169 Common Shares, 1,400,000 Preferred Shares
and Warrants to purchase 110,453 Common Shares. The Form of Warrant is
attached hereto as Exhibit B.
(b) Except as set forth in this Section 3.05 and except for any
shares, securities, options or rights issued or granted by ExistingSub pursuant
to the Equity Unit Plan, the Direct Investment Plan and the Stock Option Plan,
there are, and immediately following the Effective Time there will be, no
outstanding (i) shares of capital stock or voting securities of ExistingSub,
(ii) securities of ExistingSub convertible into or exchangeable for shares of
capital stock or voting securities of ExistingSub, (iii) options, warrants or
other rights (including, without limitation, preemptive rights) to acquire from
ExistingSub, or other obligation of ExistingSub to issue, any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of ExistingSub or (iv) no obligation of ExistingSub
to repurchase or otherwise acquire or retire any shares of capital stock or any
convertible securities, rights or options of the type described in (i), (ii), or
(iii).
Section 3.06. Valid Issuance of Securities. Each of the Preferred
Shares which are being issued to the Buyers hereunder, have been duly and
validly authorized and when issued, sold and delivered in accordance with the
terms hereof for the consideration set forth herein, will be duly and validly
issued, fully paid and nonassessable and free of preemptive rights. The
Warrants, when executed and delivered, will constitute valid and binding
obligations of ExistingSub, enforceable in accordance with their terms, except
as limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement or creditors' rights
generally, or (ii) laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies. ExistingSub has reserved and
will keep available for issuance upon exercise of the Warrants the total number
of Warrant Shares (as defined in the Warrants) deliverable upon exercise of all
Warrants from time to time outstanding. The issuance of the Warrant Shares has
been duly and validly authorized and, when and if issued and sold in accordance
with the Warrants, the Warrant Shares will be duly and validly issued, fully
paid and nonassessable and free of preemptive rights.
Section 3.07. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of ExistingSub, threatened
against or affecting ExistingSub or any of its respective properties before any
court or arbitrator or any governmental body, agency or official which in any
manner challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by the Transaction Documents.
ARTICLE 4
Representations and Warranties of Buyers
Each Buyer represents and warrants to ExistingSub, severally as to
itself only and not jointly or as to any other Buyer, as of the date hereof and
as of the Closing Date that:
Section 4.01. Existence and Power. Such Buyer is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all powers (corporate, partnership or otherwise) and all
material governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted.
Section 4.02. Authorization. The execution, delivery and performance by
such Buyer of each of this Agreement, and when executed, the Investors'
Agreement and the consummation of the transactions contemplated hereby and
thereby are or, when executed, will be, within the powers (corporate,
partnership or otherwise) of such Buyer and have been or will have been duly
authorized by all necessary action on the part of such Buyer. This Agreement
constitutes and the Investors' Agreement, when executed, will constitute, a
valid and binding agreement of such Buyer, each enforceable in accordance with
their respective terms, except as limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii) laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies.
Section 4.03. Governmental Authorization. The execution, delivery and
performance by such Buyer of this Agreement and the Investors' Agreement and the
consummation of the transactions contemplated hereby and thereby require no
order, license, consent, authorization or approval of, or exemption by, or
action by or in respect of, or notice to, or filing or registration with, any
governmental body, agency or official.
Section 4.04. Purchase for Investment. Such Buyer is purchasing the
relevant Securities for investment for its own account and not with a view to,
or for sale in connection with, any distribution thereof.
Section 4.05. Private Placement. (a) Such Buyer understands that (i)
the offering and sale of the Securities hereby is intended to be exempt from
registration pursuant to Section 4(2) of the 1933 Act and (ii) there is no
existing public market for the relevant Securities, and there can be no
assurance that any Buyer will be able to sell or dispose of the relevant
Securities to be purchased by such Buyer.
(b) Such Buyer's financial situation is such that such Buyer
can afford to bear the economic risk of holding the relevant Securities acquired
hereunder for an indefinite period of time, and such Buyer can afford to suffer
the complete loss of the investment in the relevant Securities.
(c) Such Buyer's knowledge and experience in financial and
business matters are such that it is capable of evaluating the merits and risks
of the investment in the relevant Securities, or such Buyer has been advised by
a representative possessing such knowledge and experience.
(d) Such Buyer understands that the Securities acquired
hereunder are a speculative investment which involves a high degree of risk of
loss of the entire investment therein, that there are substantial restrictions
on the transferability of the Securities as set forth in the Investors'
Agreement, and that for an indefinite period following the date hereof there
will be no public market for the Securities and that, accordingly, it may not be
possible for such Buyer to sell the Securities in case of emergency or
otherwise.
(e) Such Buyer and its representatives, including, to the extent it
deems appropriate, its professional, financial, tax and other advisors, have had
the opportunity to review all documents provided to them in connection with the
investment in the Securities, and such Buyer understands and is aware of the
risks related to such investment.
(f) Such Buyer and its representatives have been given the
opportunity to examine all documents and to ask questions of, and to receive
answers from, ExistingSub and its representatives concerning the terms and
conditions of the acquisition of the Securities and the transactions
contemplated by the Transaction Documents and to obtain all additional
information which such Buyer or its representatives deem necessary.
(g) Such Buyer is an "accredited investor" as such term is
defined in Regulation D under the 1933 Act.
Section 4.06. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Buyer, threatened
against or affecting, such Buyer before any court or arbitrator or any
governmental body, agency or official which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions contemplated by this
Agreement or the Investors' Agreement.
Section 4.07. Brokers or Finders' Fees. Except as contemplated by the
Merger Agreement, there is no investment banker, broker, finder or other
intermediary which has been retained by, will be retained by or is authorized to
act on behalf of, such Buyer who might be entitled to any fee or commission from
ExistingSub, MergerSub, CVC or the DLJMB Entities upon consummation of the
transactions contemplated by this Agreement.
ARTICLE 5
Miscellaneous
Section 5.01. Rule 144A Resales. (a) If, in the opinion of counsel to a
Buyer, the Preferred Stock shall be eligible for resale by the Buyer without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to the provisions of Rule 144A promulgated thereunder ("Rule
144A"), ExistingSub hereby convenants and agrees to cooperate with each Buyer to
permit the resale by such Buyer of the Preferred Stock in accordance with the
provisions of Rule 144A.
(b) If it is necessary or advisable in connection with such resale
pursuant to Rule 144A, ExistingSub hereby covenants and agrees to:
(i) enter into such agreements (including purchase agreements and
registration rights agreements), which agreements may contain customary
covenants and representations and warranties of ExistingSub, provide
customary legal opinions, comfort letters from ExistingSub' independent
public accountants and other documentation and take such other actions
in connection therewith in order to expedite or facilitate the
disposition of the Preferred Stock, including providing reasonable
access to the officers and corporate records of ExistingSub and
register or qualify the Preferred Stock under the securities or Blue
Sky laws of such jurisdictions as the Buyer may reasonably request and
to continue such registration or qualification in effect so long as
required for resales pursuant to Rule 144A and to file such consents to
service of process or other documents as may be necessary in order to
effect such registration or qualification; provided however, the
ExistingSub shall not be required in connection therewith to qualify as
a foreign entity in any jurisdiction in which it is now not so
qualified or to take any action that would subject it to general
consent to service of process or taxation in any jursidiction in which
it is now not so subject;
(ii) prepare and furnish to each Buyer an offering memorandum in
form and substance reasonably acceptable to such Buyer and its counsel
and during such period as, in the opinion of counsel to the Buyer, an
offering memorandum is required by law to be delivered in connection
with resales pursuant to Rule 144A (A) not to make any amendment or
supplement to the offering memorandum of which such Buyer shall not
previously have been advised or to which such Buyer shall reasonably
object after being so advised, and (B) to prepare promptly, upon the
Buyer's reasonable request, any amendment or supplement to the offering
memorandum which may be necessary or advisable in connection with such
resales;
(iii) use its reasonable best efforts to effect the inclusion of
the Preferred Stock in PORTAL and to maintain the listing of the
Preferred Stock on PORTAL for so long as the Preferred Stock is
outstanding;
(iv) obtain the approval of The Depository Trust Company ("DTC")
for "book-entry" transfer of the Preferred Stock, and to comply with
all agreements set forth in the representation letters of ExistingSub
to DTC relating to the approval of the Preferred Stock by DTC for
"book-entry" transfer;
(v) provide a CUSIP number for the Preferred Stock and provide to
any transfer agent for the Preferred Stock certificates representing
the Preferred Stock which are in a form eligible for deposit with DTC;
and
(vi) so long as the Preferred Stock is outstanding and eligible for
resale pursuant to Rule 144A and ExistingSub is not subject to Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended, to make
available to any holder of Preferred Stock in connection with any sale
thereof and any prospective purchaser of such Preferred Stock from such
holder, the information required by Rule 144A(d)(4) under the
Securities Act.
Section 5.02. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given as follows:
if to any Buyer, to such Buyer at the address specified by such Buyer
on the signature pages of this Agreement or in a notice given by such Buyer to
ExistingSub for such purpose;
if to ExistingSub, to:
Insilco Holding Co.
425 Metro Place North
Fifth Floor
Dublin, Ohio 43017
Attention: Kenneth H. Koch
Fax: (614) 791-3195
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: John 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.
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
Section 5.03. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 5.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
Section 5.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
Section 5.06. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 5.02 shall be deemed
effective service of process on such party.
Section 5.07. Waiver Of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 5.08. Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement shall confer upon any Person other than the parties
hereto any rights or remedies hereunder.
Section 5.09. Entire Agreement. The Transaction Documents (including
the documents, schedules, annexes, appendices and exhibits attached hereto and
thereto and referred to herein and therein) constitute the entire agreement
between the parties with respect to the subject matter thereof and supersede all
prior agreements and understandings, both oral and written, between the parties
with respect to the subject matter thereof.
Section 5.10. Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
INSILCO CORPORATION
By: /s/ William F. Dawson, Jr.
------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
DLJ MERCHANT BANKING PARTNERS
II, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,as
managing general partner
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENNIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management
Corporation, as manager
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
UK INVESTMENT PLAN 1997
PARTNERS
By: Donaldson, Lufkin & Jenrette, Inc., as
general partner
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management
Corporation, as managing general
partner
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ ESC II, L.P.
By: DLJ LBO Plans Management
Corporation, as manager
By: /s/ William F. Dawson, Jr.
-------------------------------
Name: William F. Dawson, Jr.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
SCHEDULE A
No. of No. of Aggregate
Preferred Warrant Purchase
Shares Shares Price
Investor ----- ----- -----
DLJ Merchant Banking Partners II, 881,895 41,325.0 22,047,375
L.P.
DLJ Merchant Banking Partners II- 35,121 1,646.0 878,025
A, L.P.
DLJ Offshore Partners II, C.V. L.P. 43,367 2,032.0 1,084,175
DLJ Diversified Partners, L.P. 51,560 2,416.0 1,289,000
DLJ Diversified Partners-A, L.P. 19,147 897.0 478,675
DLJMB Funding II, Inc. 156,577 7,337.0 3,914,425
DLJ Millennium Partners, L.P. 14,259 668.0 356,475
DLJ Millennium Partners-A, L.P. 2,781 130.0 69,525
DLJ EAB Partners, L.P. 3,960 186.0 99,000
UK Investment Plan 1997 Partners 23,333 1,093.0 583,325
DLJ ESC II, L.P. 166,303 7,793.0 4,157,575
DLJ First ESC, L.P. 1,697 80.0 42,425
-- --
Total 1,400,000 65,603 $35,000,000
EXHIBIT A
Certificate of Incorporation of Insilco Holding Co.
FIRST: The name of the Corporation is Insilco Holding Co.
SECOND: The address of its registered office in the State of Delaware
is 1013 Centre Road, Wilmington, New Castle County, Delaware 19805. the name of
its registered agent at such address is Corporation Service Company."
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 18,000,000, consisting of 15,000,000 shares of Common
Stock, par value $0.001 per share (the "Common Stock") and 3,000,000 shares of
Preferred Stock, par value $0.001 per share (the "Preferred Stock"). The Board
of Directors is hereby empowered to authorize by resolution or resolutions from
time to time the issuance of one or more classes or series of Preferred Stock
and fix the designations, powers, preferences and relative, participating,
optional or other rights, if any, and the qualifications, limitations or
restrictions thereof, if any, with respect to each such class or series of
Preferred Stock and the number of shares constituting each such class or series,
and to increase or decrease the number of shares of any such class or series to
the extent permitted by Delaware Law. Three million shares of Preferred Stock
are hereby designated as 15% Senior Exchangeable Preferred Stock Due 2010 and
shall have the designations, preferences and rights as set forth on Appendix 1
hereto.
FIFTH: The Board of Directors shall have the power to adopt, amend or
repeal the bylaws of the Corporation.
SIXTH: Election of directors need not be by written ballot unless the
bylaws of the Corporation so provide.
SEVENTH: (1) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2) (a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by Delaware Law. The right to indemnification conferred in this ARTICLE SEVENTH
shall also include the right to be paid by the Corporation the expenses incurred
in connection with any such proceeding in advance of its final disposition to
the fullest extent authorized by Delaware Law. The right to indemnification
conferred in this ARTICLE SEVENTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the officers, employees and agents of the Corporation
to such extent and to such effect as the Board of Directors shall determine to
be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE SEVENTH shall
not be exclusive of any other right which any person may otherwise have or
hereafter acquire.
(5) Neither the amendment nor repeal of this ARTICLE SEVENTH, nor the
adoption of any provision of this Certificate of Incorporation or bylaws of the
Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE
SEVENTH in respect of any acts or omissions occurring prior to such amendment,
repeal, adoption or modification.
EIGHTH: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE SEVENTH,
all rights and powers conferred herein on stockholders, directors and officers,
if any, are subject to this reserved power.
NINTH: The name and address of the incorporator are as follows:
NAME MAILING ADDRESS
---- ---------------
R.G.Dickerson 229 South State Street, Dover, Delaware
APPENDIX 1
15% SENIOR EXCHANGEABLE
PREFERRED STOCK DUE 2010
of
INSILCO HOLDING CO.
(1) Number and Designation. 3,000,000 shares of the Preferred Stock of
the Corporation shall be designated as 15% Senior Exchangeable Preferred Stock
Due 2010 (the "Senior Preferred Stock").
(2) Rank. The Senior Preferred Stock shall, with respect to dividend
rights and rights on liquidation, dissolution and winding up, rank prior to all
classes of or series of common stock of the Corporation, including the
Corporation's common stock, par value $0.001 per share ("Common Stock"), and
each other class of capital stock of the Corporation, the terms of which provide
that such class shall rank junior to the Senior Preferred Stock or the terms of
which do not specify any rank relative to the Senior Preferred Stock. All equity
securities of the Corporation to which the Senior Preferred Stock ranks prior
(whether with respect to dividends or upon liquidation, dissolution, winding up
or otherwise), including the Common Stock, are collectively referred to herein
as the "Junior Securities." All equity securities of the Corporation with which
the Senior Preferred Stock ranks on a parity (whether with respect to dividends
or upon liquidation, dissolution or winding up) are collectively referred to
herein as the "Parity Securities." The respective definitions of Junior
Securities and Parity Securities shall also include any rights or options
exercisable for or convertible into any of the Junior Securities and Parity
Securities, as the case may be. The Senior Preferred Stock shall be subject to
the creation of Junior Securities.
(3) Dividends. (a) (i) The holders of shares of Senior Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the payment of dividends,
dividends (subject to Sections 3(a)(ii) and (iii) hereof) at a rate equal to 15%
per annum (on the basis of a 360 day year) (the "Dividend Rate") on the
Liquidation Value of each share of Senior Preferred Stock on and as of the most
recent Dividend Payment Date (as defined below). In the event the Corporation is
unable or shall fail to discharge its obligation to redeem all outstanding
shares of Senior Preferred Stock pursuant to paragraph 5(b) or 5(c) hereof, the
Dividend Rate shall increase by .25 percent per quarter (each, a "Default
Dividend") for each quarter or portion thereof following the date on which such
redemption was required to be made until cured, provided that the aggregate
increase shall not exceed 5%. Such dividends shall be payable in the manner set
forth below in Sections 3(a)(ii) and (iii) quarterly on January 31, April 30,
July 31 and October 31 of each year (unless such day is not a business day, in
which event on the next succeeding business day) (each of such dates being a
"Dividend Payment Date" and each such quarterly period being a "Dividend
Period"). Such dividends shall be cumulative from the date of issue, whether or
not in any Dividend Period or Periods there shall be funds of the Corporation
legally available for the payment of such dividends.
(ii) Prior to August 1, 2003 (the "Cash Pay Date"), dividends
shall not be payable in cash to holders of shares of Senior
Preferred Stock but shall, subject to Section 3(b) hereof,
accrete to the Liquidation Value in accordance with Section
4(a) hereof.
(iii) Following the Cash Pay Date, each such dividend shall
be payable in cash on the Liquidation Value per share of the
Senior Preferred Stock, in equal quarterly amounts (to which
the Default Dividend, if any, shall be added), to the holders
of record of shares of the Senior Preferred Stock, as they
appear on the stock records of the Corporation at the close of
business on such record dates, not more than 60 days or less
than 10 days preceding the payment dates thereof, as shall be
fixed by the Board of Directors. Accrued and unpaid dividends
for any past Dividend Periods may be declared and paid at any
time, without reference to any Dividend Payment Date, to
holders of record on such date, not more than 45 days
preceding the payment date thereof, as may be fixed by the
Board of Directors.
(b) At the written request of the holders of a majority of the shares
of Senior Preferred Stock, the Corporation shall, commencing on the first
Dividend Payment Date after such request and ending on the Cash Pay Date, be
required to pay all dividends on shares of Senior Preferred Stock by the
issuance of additional shares of Senior Preferred Stock ("Additional Shares").
The Additional Shares shall be identical to all other shares of Senior Preferred
Stock, except as set forth in Section 4. For the purposes of determining the
number of Additional Shares to be issued as dividends pursuant to this Paragraph
(b), such Additional Shares shall be valued at their Applicable Liquidation
Value as provided in Section 4(c).
(c) Holders of shares of Senior Preferred Stock shall not be entitled
to any dividends, whether payable in cash, property or stock, in excess of the
cumulative dividends, as herein provided, on the Senior Preferred Stock. Except
as provided in this Section 3, no interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on the Senior
Preferred Stock that may be in arrears.
(d) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends, except as described in the next succeeding sentence,
shall be declared or paid or set apart for payment on Parity Securities, for any
period unless (to the extent such dividends are payable in cash) full cumulative
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment on the Senior
Preferred Stock for all Dividend Periods terminating on or prior to the date of
payment of the dividend on such class or series of Parity Securities. When (to
the extent such dividends are payable in cash) dividends are not paid in full or
a sum sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon shares of the Senior Preferred Stock and all dividends declared
upon any other class or series of Parity Securities shall (in each case, to the
extent payable in cash) be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Senior Preferred Stock and
accumulated and unpaid on such Parity Securities.
(e) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Junior Securities) shall be declared or paid or set apart for payment or other
distribution declared or made upon Junior Securities, nor shall any Junior
Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan of the Corporation or any
subsidiary) (all such dividends, distributions, redemptions or purchases being
hereinafter referred to as a "Junior Securities Distribution") for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation, directly or
indirectly (except by conversion into or exchange for Junior Securities), unless
in each case (i) the full cumulative dividends on all outstanding shares of the
Senior Preferred Stock and any other Parity Securities shall (to the extent
payable in cash) have been paid or set apart for payment for all past Dividend
Periods with respect to the Senior Preferred Stock and all past dividend periods
with respect to such Parity Securities and (ii) (to the extent payable in cash)
sufficient funds shall have been paid or set apart for the payment of the
dividend for the current Dividend Period with respect to the Senior Preferred
Stock and the current dividend period with respect to such Parity Securities.
(4) Liquidation Preference. (a) In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
before any payment or distribution of the assets of the Corporation (whether
capital or surplus) shall be made to or set apart for the holders of Junior
Securities, the holders of the shares of Senior Preferred Stock shall be
entitled to receive an amount equal to the Liquidation Value of such share plus
any accrued and unpaid cash dividends to the date of distribution. "Liquidation
Value" on any date means, with respect to (x) any share of Senior Preferred
Stock other than any Additional Shares, the sum of (1) $25.00 per share and (2)
the aggregate of all dividends accreted on such share until the most recent
Dividend Payment Date upon which an accretion to Liquidation Value has occurred
(or if such date is a Dividend Payment Date upon which an accretion to
Liquidation Value has occurred, such date), provided that in the event of an
actual liquidation, dissolution or winding up of the Corporation or the
redemption of any shares of Senior Preferred Stock pursuant to Section 5
hereunder, the amount referred to in (2) shall be calculated by including
dividends accreting to the actual date of such liquidation, dissolution or
winding up or the redemption date, as the case may be, rather than the Dividend
Payment Date referred to above and provided further that in no event will
dividends accrete beyond the earlier of (i) the Cash Pay Date and (ii) the most
recent Dividend Payment Date prior to the Dividend Payment Date on which
dividends on the Senior Preferred Stock are payable in Additional Shares and (y)
any Additional Share, the Applicable Liquidation Value. All accretions to
Liquidation Value will be calculated using compounding on a quarterly basis.
Except as provided in the preceding sentences, holders of shares of Senior
Preferred Stock shall not be entitled to any distribution in the event of
liquidation, dissolution or winding up of the affairs of the Corporation. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of the
shares of Senior Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any Parity Securities,
then such assets, or the proceeds thereof, shall be distributed among the
holders of shares of Senior Preferred Stock and any such other Parity Securities
ratably in accordance with the respective amounts that would be payable on such
shares of Senior Preferred Stock and any such other stock if all amounts payable
thereon were paid in full. For the purposes of this paragraph (4), (i) a
consolidation or merger of the Corporation with one or more corporations, or
(ii) a sale or transfer of all or substantially all of the Corporation's assets,
shall not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of any Parity Securities,
after payment shall have been made in full to the holders of the Senior
Preferred Stock, as provided in this paragraph (4), any other series or class or
classes of Junior Securities shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of the Senior Preferred
Stock shall not be entitled to share therein.
(c) The "Applicable Liquidation Value" of any Additional Shares shall
be the Liquidation Value of Senior Preferred Stock outstanding immediately prior
to the first Dividend Payment Date occurring after a request for payment in
Additional Shares has been made in accordance with Section 3(b).
(5) Redemption. (a) Redemption At the Option of the Corporation. To the
extent the Corporation shall have funds legally available for such payment, the
Corporation may, at its option, redeem shares of Senior Preferred Stock, at any
time in whole but not in part, at redemption prices per share in cash set forth
in the table below, together with accrued and unpaid cash dividends thereon to
the date fixed for redemption, without interest:
Prior to
August 1, Percentage of Liquidation Value
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2003 115.000
2004 107.500
2005 105.000
2006 102.500
Thereafter 100.000
(b) Redemption In the Event of a Change of Control. In the event of a
Change of Control, the Corporation shall, to the extent it shall have funds
legally available for such payment, offer to redeem all of the shares of Senior
Preferred Stock then outstanding, and shall redeem the shares of Senior
Preferred Stock of any holder of such shares that shall consent to such
redemption, upon a date no later than 30 days following the Change in Control,
at a redemption price per share equal to 101% of the Liquidation Value, in cash,
plus accrued and unpaid cash dividends thereon to the date fixed for redemption,
without interest.
"Change of Control" means such time as: (a) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended), other than any person or group comprised solely of the
Initial Investors, has become the beneficial owner, by way of merger,
consolidation or otherwise, of 50% or more of the voting power of all classes of
voting securities of the Corporation, and such person or group has become the
beneficial owner of a greater percentage of the voting power of all classes of
voting securities of the Corporation than that beneficially owned by the Initial
Investors; or (b) a sale or transfer of all or substantially all of the assets
of the Corporation to any person or group (other than any group consisting
solely of the Initial Investors or their affiliates) has been consummated; or
(c) during any period of two consecutive years, individuals who at the beginning
of such period constituted the Board of Directors of the Corporation (together
with any new directors whose election was approved by a vote of a majority of
the directors then still in office, who either were directors at the beginning
of such period or whose election or nomination for the election was previously
so approved) cease for any reason to constitute a majority of the directors of
the Corporation, then in office.
"Initial Investors" means the Stockholders (determined as of the
issuance of the Preferred Stock) and their Permitted Transferees, each as
defined in the Investors' Agreement.
"Investors' Agreement" means the Investors' Agreement dated as of
August 17, 1998 among Insilco Holding Co., DLJ Merchant Banking Partners II,
L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II, C.V.,
DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium-A, L.P., DLJMB Funding II, Inc., DLJ EAB
Partners, L.P., DLJ First ESC L.P., UK Investment Plan 1997 Partners, DLJ ESC
II, L.P., (collectively, the "DLJMB Funds"), and 399 Venture Partners, Inc., as
amended
(c) Mandatory Redemption. To the extent the Corporation shall have
funds legally available for such payment, on August 1, 2010, if any shares of
the Senior Preferred Stock shall be outstanding, the Corporation shall redeem
all outstanding shares of the Senior Preferred Stock, at a redemption price
equal to the aggregate Liquidation Value, in cash, together with any accrued and
unpaid cash dividends thereon to the date fixed for redemption, without
interest.
(d) Status of Redeemed Shares. Shares of Senior Preferred Stock which
have been issued and reacquired in any manner, including shares purchased or
redeemed, shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of the
class of Preferred Stock undesignated as to series and may be redesignated and
reissued as part of any series of the Preferred Stock; provided that no such
issued and reacquired shares of Senior Preferred Stock shall be reissued or sold
as Senior Preferred Stock.
(e) Failure to Redeem. If the Corporation is unable or shall fail to
discharge its obligation to redeem all outstanding shares of Senior Preferred
Stock pursuant to paragraph (5)(b) or 5(c) (each, a "Mandatory Redemption
Obligation"), such Mandatory Redemption Obligation shall be discharged as soon
as the Corporation is able to discharge such Mandatory Redemption Obligation. If
and so long as any Mandatory Redemption Obligation with respect to the Senior
Preferred Stock shall not be fully discharged, the Corporation shall not (i)
directly or indirectly, redeem, purchase, or otherwise acquire any Parity
Security or discharge any mandatory or optional redemption, sinking fund or
other similar obligation in respect of any Parity Securities (except in
connection with a redemption, sinking fund or other similar obligation to be
satisfied pro rata with the Senior Preferred Stock) or (ii) in accordance with
paragraph 3(e), declare or make any Junior Securities Distribution, or, directly
or indirectly, discharge any mandatory or optional redemption, sinking fund or
other similar obligation in respect of the Junior Securities.
(f) Failure to Pay Dividends. Notwithstanding the foregoing provisions
of this paragraph (5), unless full cumulative cash dividends (whether or not
declared) on all outstanding shares of Senior Preferred Stock shall have been
paid or contemporaneously are declared and paid or set apart for payment for all
dividend periods terminating on or prior to the applicable redemption date, none
of the shares of Senior Preferred Stock shall be redeemed, and no sum shall be
set aside for such redemption, unless shares of Senior Preferred Stock are
redeemed pro rata.
(6) Procedure for Redemption. (a) In the event the Corporation shall
redeem shares of Senior Preferred Stock pursuant to Sections 5(a) or (c), notice
of such redemption shall be given by first class mail, postage prepaid, mailed
not less than 30 days nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed at such holder's address as
the same appears on the stock register of the Corporation; provided that neither
the failure to give such notice nor any defect therein shall affect the validity
of the giving of notice for the redemption of any share of Senior Preferred
Stock to be redeemed except as to the holder to whom the Corporation has failed
to give said notice or except as to the holder whose notice was defective. Each
such notice shall state: (i) the redemption date; (ii) the number of shares of
Senior Preferred Stock to be redeemed; (iii) the redemption price; (iv) the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price; and (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date.
(b) In the case of any redemption pursuant to Sections 5(a) or (c)
hereof, notice having been mailed as provided in Section 6(a) hereof, from and
after the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price of the shares called for
redemption), dividends on the shares of Senior Preferred Stock so called for
redemption shall cease to accrue, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation shall so
require and the notice shall so state), such share shall be redeemed by the
Corporation at the redemption price aforesaid. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder thereof.
(c) In the case of a redemption pursuant to Section 5(b) hereof, notice
of such redemption shall be given by first class mail, postage prepaid, mailed
not more than 10 days following the occurrence of the Change of Control and not
less than 20 days prior to the redemption date, to each holder of record of the
shares to be redeemed at such holder's address as the same appears on the stock
register of the Corporation; provided that neither the failure to give such
notice nor any defect therein shall affect the validity of the giving of notice
for the redemption of any share of Senior Preferred Stock to be redeemed except
as to the holder to whom the Corporation has failed to give said notice or
except as to the holder whose notice was defective. Each such notice shall
state: (i) that a Change of Control has occurred; (ii) the redemption date;
(iii) the redemption price; (iv) that such holder may elect to cause the
Corporation to redeem all or any of the shares of Senior Preferred Stock held by
such holder; (v) the place or places where certificates for such shares are to
be surrendered for payment of the redemption price; and (vi) that dividends on
the shares the holder elects to cause the Corporation to redeem will cease to
accrue on such redemption date.
Upon receipt of such notice, the holder shall, within 20 days of
receipt thereof, return such notice to the Corporation indicating the number of
shares of Senior Preferred Stock such holder shall elect to cause the
Corporation to redeem, if any.
(d) In the case of a redemption pursuant to Section 5(b) hereof, notice
having been mailed as provided in Section 6(c) hereof, from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the redemption price of the shares called for
redemption), dividends on such shares of Senior Preferred Stock as the holder
elects to cause the Corporation to redeem shall cease to accrue, and all rights
of the holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon surrender
in accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such share shall be
redeemed by the Corporation at the redemption price aforesaid. In case fewer
than all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(7) Exchange. (a) Subject to the provisions of this paragraph (7) the
Corporation may, at its option, at any time and from time to time on any
Dividend Payment Date, exchange, to the extent it is legally permitted to do so,
all, but not less than all, outstanding shares (and fractional shares) of Senior
Preferred Stock, for Exchange Debentures, provided that (i) on or prior to the
date of exchange the Corporation shall have paid to or declared and set aside
for payment to the holders of outstanding shares of Senior Preferred Stock all
accrued and unpaid cash dividends on shares of Senior Preferred Stock through
the exchange date in accordance with the next succeeding paragraph; (ii) no
event of default under the indenture (as defined in such indenture) governing
the Exchange Debentures shall have occurred and be continuing; and (iii) no
shares of Senior Preferred Stock are held on such date by the DLJMB Funds or any
of their Affiliates, or any of their Permitted Transferees. The principal amount
of Exchange Debentures deliverable upon exchange of a share of Senior Preferred
Stock, adjusted as hereinafter provided, shall be determined in accordance with
the Exchange Ratio (as defined below).
Cash dividends on any shares of Senior Preferred Stock exchanged for
Exchange Debentures which have accrued but have not been paid as of the date of
exchange shall be paid in cash. In no event shall the Corporation issue Exchange
Debentures in denominations other than $1,000 or in an integral multiple
thereof. Cash will be paid in lieu of any such fraction of an Exchange Debenture
which would otherwise have been issued (which shall be determined with respect
to the aggregate principal amount of Exchange Debentures to be issued to a
holder upon any such exchange). Interest will accrue on the Exchange Debentures
from the date of exchange.
Prior to effecting any exchange hereunder, the Corporation shall
appoint a trustee to serve in the capacity contemplated by an indenture between
the Corporation and such trustee, containing customary terms and conditions.
The Exchange Ratio shall be, as of any Dividend Payment Date, $1.00 (or
fraction thereof) of principal amount of Exchange Debenture for each $1.00 of
(i) Liquidation Value plus (ii) accrued and unpaid cash dividends, if any, per
share of Senior Preferred Stock held by a holder on the applicable exchange
date.
"Affiliates" shall have the meaning ascribed such term in the
Investors' Agreement.
"Exchange Debentures" means 15% Subordinated Exchange Debentures due
2010 of the Corporation, to be issued pursuant to an indenture between the
Corporation and a trustee, containing customary terms and conditions, in
accordance with the Term Sheet attached as Annex A hereto.
"Permitted Transferees" shall have the meaning ascribed to such term in
the Investors' Agreement.
(b) Procedure for Exchange. (i) In the event the Corporation
shall exchange shares of Senior Preferred Stock, notice of such exchange shall
be given by first class mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the exchange date, to each holder of record of the
shares to be exchanged at such holder's address as the same appears on the stock
register of the Corporation; provided that neither the failure to give such
notice nor any defect therein shall affect the validity of the giving of notice
for the exchange of any share of Senior Preferred Stock to be exchanged except
as to the holder to whom the Corporation has failed to give said notice or
except as to the holder whose notice was defective. Each such notice shall
state: (A) the exchange date; (B) the number of shares of Senior Preferred Stock
to be exchanged and, if fewer than all the shares held by such holder are to be
exchanged, the number of shares to be exchanged from such holder; (C) the
Exchange Ratio; (D) the place or places where certificates for such shares are
to be exchanged for notes evidencing the Exchange Debentures to be received by
the exchanging holder; and (E) that dividends on the shares to be exchanged will
cease to accrue on such exchange date.
(ii) Prior to giving notice of intention to exchange, the
Corporation shall execute and deliver with a bank or trust
company selected by the Corporation an indenture containing
customary terms and conditions. The Corporation will cause the
Exchange Debentures to be authenticated on the Dividend
Payment Date on which the exchange is effective, and will pay
interest on the Exchange Debentures at the rate and on the
dates specified in such indenture from the exchange date.
The Corporation will not give notice of its intention
to exchange under paragraph 6(b)(i) hereof unless it shall
file at the place or places (including a place in the Borough
of Manhattan, The City of New York) maintained for such
purpose an opinion of counsel (who may be an employee of the
Corporation) to the effect that (i) the indenture has been
duly authorized, executed and delivered by the Corporation,
has been duly qualified under the Trust Indenture Act of 1939
(or that such qualification is not necessary) and constitutes
a valid and binding instrument enforceable against the
Corporation in accordance with its terms (subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and
subject to such other qualifications as are then customarily
contained in opinions of counsel experienced in such matters),
(ii) the Exchange Debentures have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the indenture and delivered in exchange for the
shares of Preferred Stock, will constitute valid and binding
obligations of the Corporation entitled to the benefits of the
indenture (subject as aforesaid), (iii) neither the execution
nor delivery of the indenture or the Exchange Debentures nor
compliance with the terms, conditions or provisions of such
instruments will result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or agreement or instrument,
known to such counsel, to which the Corporation or any of its
subsidiaries is a party or by which it or any of them is
bound, or any decree, judgment, order, rule or regulation,
known to such counsel, of any court or governmental agency or
body having jurisdiction over the Corporation and such
subsidiaries or any of their properties, (iv) the Exchange
Debentures have been duly registered for such exchange with
the Securities and Exchange Commission under a registration
statement that has become effective under the Securities Act
of 1933 (the "Act") or that the exchange of the Exchange
Debentures for the shares of Senior Preferred Stock is exempt
from registration under the Act, and (v) the Corporation has
sufficient legally available funds for such exchange such that
such exchange is permitted under applicable law.
(iii) Notice having been mailed as aforesaid, from and after
the exchange date (unless default shall be made by the
Corporation in issuing Exchange Debentures in exchange for the
shares called for exchange), dividends on the shares of Senior
Preferred Stock so called for exchange shall cease to accrue,
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation
the Exchange Debentures and any rights such holder, upon the
exchange, may have as a holder of the Exchange Debenture)
shall cease. Upon surrender in accordance with said notice of
the certificates for any shares so exchanged (properly
endorsed or assigned for transfer, if the Board of Directors
of the Corporation shall so require and the notice shall so
state), such share shall be exchanged by the Corporation for
the Exchange Debentures at the Exchange Ratio. In case fewer
than all the shares represented by any such certificate are
exchanged, a new certificate shall be issued representing the
unexchanged shares without cost to the holder thereof.
(iv) Each exchange shall be deemed to have been effected
immediately after the close of business on the relevant
Dividend Payment Date, and the person in whose name or names
any Exchange Debentures shall be issuable upon such exchange
shall be deemed to have become the holder of record of the
Exchange Debentures represented thereby at such time on such
Dividend Payment Date.
(v) Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon exchange of the
Senior Preferred Stock, the Corporation shall comply with all
applicable federal and state laws and regulations which
require action to be taken by the Corporation.
(c) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of notes
evidencing Exchange Debentures on exchange of the Senior Preferred Stock
pursuant hereto; provided that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of Exchange Debentures in a name other than that of the holder of the
Senior Preferred Stock to be exchanged and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(8) Voting Rights. (a) The holders of record of shares of
Senior Preferred Stock shall not be entitled to any voting rights except as
hereinafter provided in this paragraph (8), as otherwise provided by law or as
provided in the Investors' Agreement.
(b) If and whenever (i) four consecutive or six quarterly cash
dividends payable on the Senior Preferred Stock have not been paid in full, (ii)
for any reason (including the reason that funds are not legally available for a
redemption), the Corporation shall have failed to discharge any Mandatory
Redemption Obligation (including a redemption in the Event of a Change of
Control pursuant to Section 5(b) hereof), (iii) the Corporation shall have
failed to provide the notice required by Section 6(d) hereof within the time
period specified in such section or (iv) the Corporation shall have failed to
comply with Sections 3(d), 3(e) or 8(c) hereof, (1) the number of directors then
constituting the Board of Directors shall be increased by two and the holders of
a majority of the outstanding shares of Senior Preferred Stock, together with
the holders of shares of every other series of preferred stock upon which like
rights have been conferred and are exercisable (resulting form either the
failure to pay dividends or the failure to redeem) (any such series is referred
to as the "Preferred Shares"), voting as a single class regardless of series,
shall be entitled to elect the two additional directors to serve on the Board of
Directors at any annual meeting of stockholders or special meeting held in place
thereof, or at a special meeting of the holders of the Senior Preferred Stock
and the Preferred Shares called as hereinafter provided. Whenever (i) all
arrears in cash dividends on the Senior Preferred Stock and the Preferred Shares
then outstanding shall have been paid and cash dividends thereon for the current
quarterly dividend period shall have been paid or declared and set apart for
payment, (ii) the Corporation shall have fulfilled its Mandatory Redemption
Obligation, (iii) fulfilled its obligation to provide notice as specified in
subsection (b)(iii) hereof, or (iv) the Corporation shall have complied with
Sections 3(d), 3(e), or 8(c) hereof, as the case may be, then the right of the
holders of the Senior Preferred Stock to elect such additional two directors
shall cease (but subject always to the same provisions for the vesting of such
voting rights in the case of any similar future (i) arrearage in six consecutive
quarterly cash dividends, (ii) failure to fulfill any Mandatory Redemption
Obligation, (iii) failure to fulfill the obligation to provide the notice
required by Section 6(d) hereof within the time period specified in such section
or (iv) failure to comply with Sections 3(d), 3(e), or 8(c)) and the terms of
office of all persons elected as directors by the holders of the Senior
Preferred Stock shall forthwith terminate and the number of the Board of
Directors shall be reduced accordingly. At any time after such voting power
shall have been so vested in the holders of shares of Senior Preferred Stock and
the Preferred Shares, the secretary of the Corporation may, and upon the written
request of any holder of Senior Preferred Stock (addressed to the secretary at
the principal office of the Corporation) shall, call a special meeting of the
holders of the Senior Preferred Stock and of the Preferred Shares for the
election of the two directors to be elected by them as herein provided, such
call to be made by notice similar to that provided in the Bylaws of the
Corporation for a special meeting of the stockholders or as required by law. If
any such special meeting required to be called as above provided shall not be
called by the secretary within 20 days after receipt of any such request, then
any holder of shares of Senior Preferred Stock may call such meeting, upon the
notice above provided, and for that purpose shall have access to the stock books
of the Corporation. The directors elected at any such special meeting shall hold
office until the next annual meeting of the stockholders or special meeting held
in lieu thereof if such office shall not have previously terminated as above
provided. If any vacancy shall occur among the directors elected by the holders
of the Senior Preferred Stock and the Preferred Shares, a successor shall be
elected by the Board of Directors, upon the nomination of the then-remaining
director elected by the holders of the Senior Preferred Stock and the Preferred
Shares or the successor of such remaining director, to serve until the next
annual meeting of the stockholders or special meeting held in place thereof if
such office shall not have previously terminated as provided above.
(c) Without the written consent of a majority of the outstanding shares
of Senior Preferred Stock or the vote of holders of a majority of the
outstanding shares of Senior Preferred Stock at a meeting of the holders of
Senior Preferred Stock called for such purpose, the Corporation will not (i)
amend, alter or repeal any provision of the Certificate of Incorporation (by
merger or otherwise) so as to adversely affect the preferences, rights or powers
of the Senior Preferred Stock; provided that any such amendment that decreases
the dividend payable on or the Liquidation Value of the Senior Preferred Stock
shall require the affirmative vote of holders of each share of Senior Preferred
Stock at a meeting of holders of Senior Preferred Stock called for such purpose
or written consent of the holder of each share of Senior Preferred Stock; or
(ii) create, authorize or issue any class of stock ranking prior to, or on a
parity with, the Senior Preferred Stock with respect to dividends or upon
liquidation, dissolution, winding up or otherwise, or increase the authorized
number of shares of any such class or series, or reclassify any authorized stock
of the Corporation into any such prior or parity shares or create, authorize or
issue any obligation or security convertible into or evidencing the right to
purchase any such prior or parity shares, except that the Corporation may,
without such approval, create authorize and issue Parity Securities for the
purpose of utilizing the proceeds from the issuance of such Parity Securities
for the redemption or repurchase of all outstanding shares of Senior Preferred
Stock in accordance with the terms hereof or of the Investors' Agreement.
(d) In exercising the voting rights set forth in this paragraph (8),
each share of Senior Preferred Stock shall have one vote per share, except that
when any other series of preferred stock shall have the right to vote with the
Senior Preferred Stock as a single class on any matter, then the Senior
Preferred Stock and such other series shall have with respect to such matters
one vote per $25.00 of Liquidation Value or other liquidation preference. Except
as otherwise required by applicable law or as set forth herein, the shares of
Senior Preferred Stock shall not have any relative, participating, optional or
other special voting rights and powers and the consent of the holders thereof
shall not be required for the taking of any corporate action.
(9) Reports. So long as any of the Senior Preferred Stock is
outstanding, the Corporation will furnish the holders thereof with the quarterly
and annual financial reports that the Corporation is required to file with the
Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 or, in the event the Corporation is not
required to file such reports, reports containing the same information as would
be required in such reports.
(10) General Provisions. (a)The term "Person" as used herein means any
corporation, limited liability company, partnership, trust, organization,
association, other entity or individual.
(b) The term "outstanding", when used with reference to shares of
stock, shall mean issued shares, excluding shares held by the Corporation or a
subsidiary.
(c) The headings of the paragraphs, subparagraphs, clauses and
subclauses used herein are for convenience of reference only and shall not
define, limit or affect any of the provisions hereof.
(d) Each holder of Senior Preferred Stock, by acceptance thereof,
acknowledges and agrees that payments of dividends, interest, premium and
principal on, and exchange, redemption and repurchase of, such securities by the
Corporation are subject to restrictions on the Corporation contained in certain
credit and financing agreements.
ANNEX A
SUMMARY OF TERMS
OF INDENTURE FOR
15% SUBORDINATED EXCHANGE DEBENTURES
Parties: Insilco Holding Co. (the "Corporation") and
[ ], as trustee.
Issue: 15% Exchange Debentures (the "Exchange
Debentures") to be issued by the Corporation, at
its option, in exchange for any or all the
outstanding shares of 15% Senior Exchangeable
Preferred Stock due 2010 (the "Senior Preferred
Stock") issued on or about August 17, 1998 to
DLJ Merchant Banking Partners II, L.P. and
certain of its affiliates (the "DLJ Entities").
Maturity: August 1, 2010.
Interest: 15% annual rate, payable semi-annually.
Through the tenth semi-annual interest payment
period, quarterly interest will accrete on a
compound basis (i.e. non-cash pay) and increase
the face amount of the Exchange Debentures,
thereafter interest will be payable in cash.
Ranking: The Exchange Debentures will rank senior to all
other subordinated debt (but junior to the Senior
Discount Debentures due 2008 of the Corporation
and the Corporation's guaranty of Insilco
Corporation's indebtedness under its Senior
Credit Facility), preferred stock and common
equity of the Corporation.
Optional Redemption: The Exchange Debentures will be redeemable at
any time at the option of the Corporation, in
whole or in part, at the same redemption prices
set forth in the designation of the Senior
Preferred Stock set forth in Article 4 of the
Restated Certificate of Incorporation of the
Surviving Corporation.
Change of Control
Repurchase Right: In the event of a Change of Control of the
Corporation each holder of the Exchange
Debentures will have the right to require
the Corporation to repurchase all or any
part of such holder's Exchange Debentures
at a purchase price of 101% of the sum of
the accreted value thereof plus accrued and
unpaid cash interest, if any, to the
repurchase date.
Covenants: The Debentures will contain covenants that are
substantially the same as the covenants contained
in the Indenture for the Senior Discount
Debentures due 2008 of the Corporation and will
limit, among other things, the ability of the
Corporation and its subsidiaries (i) to incur
additional indebtedness, (ii) to pay dividends and
make other distributions on its capital stock, (iii)
to repurchase its capital stock or warrants,
options or other rights to acquire shares of its
capital stock or any Indebtedness subordinated to
the Exchange Debentures, (iv) to make certain
other Restricted Payments, (v) to make certain
investments or asset sales, (vi) to engage in
transactions with affiliates, (vii) to create liens,
(viii) to permit "layering" of indebtedness and
(ix) to merge or consolidate or transfer all or
substantially all of its assets.
EXHIBIT B
INSILCO HOLDING CO.
Class A Warrant for the Purchase of Shares of
Common Stock of Insilco Holding Co.
Class A
No. ____ Warrant to Purchase
____ Shares
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, VOTING AND OTHER MATTERS AS SET
FORTH IN THE INVESTORS' AGREEMENT (AS HEREIN DEFINED), COPIES OF WHICH
MAY BE OBTAINED UPON REQUEST FROM THE COMPANY.
FOR VALUE RECEIVED, INSILCO HOLDING CO., a Delaware corporation (the
"Company"), hereby certifies that [HOLDER], its successor or permitted assigns
(the "Holder"), is entitled, subject to the provisions of this Class A Warrant,
to purchase from the Company, at the times specified herein, _____ fully paid
and non-assessable shares of common stock of the Company, par value $ 0.001 per
share (the "Warrant Shares"), at a purchase price per share equal to the
Exercise Price (as hereinafter defined). The number of Warrant Shares to be
received upon the exercise of this Class A Warrant and the price to be paid for
a Warrant Share are subject to adjustment from time to time as hereinafter set
forth.
(a) DEFINITIONS.
(1) The following terms, as used herein, have the following meanings:
"Affiliate" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as amended.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"Common Stock" means the Common Stock, par value $0.001 per share,
of the Company or other capital stock of the Company that is not preferred as to
liquidation or dividends or any other security for which this Warrant may be
exercised pursuant to Section (i) hereof after the occurrence of any of the
transactions described in such Section.
"Duly Endorsed" means duly endorsed in blank by the Person or Persons
in whose name a stock certificate is registered or accompanied by a duly
executed stock assignment separate from the certificate with the signature(s)
thereon guaranteed by a commercial bank or trust company or a member of a
national securities exchange or of the National Association of Securities
Dealers, Inc.
"Exercise Price" means $0.001 per Warrant Share, such Exercise Price to
be adjusted from time to time as provided herein.
"Expiration Date" means ____, 2008 at 5:00 p.m. New York City time.
"Fair Market Value" means, with respect to one share of Common Stock on
any date, the Current Market Price Per Common Share as defined in paragraph
(h)(6) hereof.
"Investors Agreement" means the Investors Agreement dated as of the
date hereof among Insilco Holding Co., DLJ Merchant Banking Partners II, L.P.,
DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II, C.V., DLJ
Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium Partners-A, L.P., DLJ Funding II, Inc., UK
Investment Plan 1997 Partners, DLJ EAB Partners, L.P., DLJ ESC II, L.P., DLJ
First ESC, L.P. and 399 Venture Partners, Inc. ("CVC").
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Principal Holders" means, on any date, the Holders of at least 50% of
the Warrants.
"Subscription Agreement" means the Subscription Agreement dated as of
the date hereof between the Company and the investors party thereto.
"transfer" shall have the meaning assigned to such term in the
Investors' Agreement.
"Warrants" means the Class A Warrants issued to the subscribers under
the Subscription Agreement.
(2) Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Investors' Agreement.
(b) EXERCISE OF WARRANT.
(1) The Holder is entitled to exercise this Warrant
in whole or in part at any time, or from time to time, until
the Expiration Date or, if such day is not a Business Day,
then on the next succeeding day that shall be a Business Day.
To exercise this Warrant, the Holder shall execute and deliver
to the Company a Warrant Exercise Notice substantially in the
form annexed hereto. No earlier than ten days after delivery
of the Warrant Exercise Notice, the Holder shall deliver to
the Company this Warrant Certificate duly executed by the
Holder, together with payment of the applicable Exercise
Price, provided, however, that in connection with a public
offering of the Common Stock, a Holder may deliver the Warrant
Exercise Notice and this Warrant Certificate to the Company
simultaneously. Upon such delivery and payment, the Holder
shall be deemed to be the holder of record of the Warrant
Shares subject to such exercise, notwithstanding that the
stock transfer books of the Company shall then be closed or
that certificates representing such Warrant Shares shall not
then be actually delivered to the Holder. Notwithstanding
anything herein to the contrary, in lieu of payment in cash of
the applicable Exercise Price, the Holder may elect (i) to
receive upon exercise of this Warrant, the number of Warrant
Shares reduced by a number of shares of Common Stock having
the aggregate Fair Market Value equal to the aggregate
Exercise Price for the Warrant Shares, (ii) to deliver as
payment, in whole or in part of the aggregate Exercise Price,
shares of Common Stock having the aggregate Fair Market Value
equal to the applicable portion of the aggregate Exercise
Price for the Warrant Shares or (iii) to deliver as payment,
in whole or in part of the aggregate Exercise Price, such
number of Warrants which, if exercised, would result in a
number of shares of Common Stock having an aggregate Fair
Market Value equal to the applicable portion of the aggregate
Exercise Price for the Warrant Shares. Notwithstanding
anything to the contrary in this paragraph (b)(1), if the
aggregate Fair Market Value of the Common Stock applied or
delivered pursuant to (i), (ii) or (iii) above exceeds the
aggregate Exercise Price, in no event shall the Holder be
entitled to receive any amounts from the Company.
(2) The Exercise Price may be paid in cash or by
certified or official bank check or bank cashier's check
payable to the order of the Company or by any combination of
such cash or check. The Company shall pay any and all
documentary, stamp or similar issue or transfer taxes payable
in respect of the issue or delivery of the Warrant Shares.
(3) If the Holder exercises this Warrant in part,
this Warrant Certificate shall be surrendered by the Holder to
the Company and a new Warrant Certificate of the same tenor
and for the unexercised number of Warrant Shares shall be
executed by the Company. The Company shall register the new
Warrant Certificate in the name of the Holder or in such name
or names of its transferee pursuant to paragraph (f) hereof as
may be directed in writing by the Holder and deliver the new
Warrant Certificate to the Person or Persons entitled to
receive the same.
(4) Upon surrender of this Warrant Certificate in
conformity with the foregoing provisions, the Company shall
transfer to the Holder of this Warrant Certificate appropriate
evidence of ownership of the shares of Common Stock or other
securities or property (including any money) to which the
Holder is entitled, registered or otherwise placed in, or
payable to the order of, the name or names of the Holder or
such transferee as may be directed in writing by the Holder,
and shall deliver such evidence of ownership and any other
securities or property (including any money) to the Person or
Persons entitled to receive the same, together with an amount
in cash in lieu of any fraction of a share as provided in
paragraph (e) below.
(c) RESTRICTIVE LEGEND. Certificates representing shares of Common
Stock issued pursuant to this Warrant shall bear a legend substantially in the
form of the legend set forth on the first page of this Warrant Certificate to
the extent that and for so long as such legend is required pursuant to the
Investors' Agreement.
(d) RESERVATION OF SHARES. The Company hereby agrees that at all times
it shall reserve for issuance and delivery upon exercise of this Warrant such
number of its authorized but unissued shares of Common Stock or other securities
of the Company from time to time issuable upon exercise of this Warrant as will
be sufficient to permit the exercise in full of this Warrant. All such shares
shall be duly authorized and, when issued upon such exercise, shall be validly
issued, fully paid and non-assessable, free and clear of all liens, security
interests, charges and other encumbrances or restrictions on sale and free and
clear of all preemptive rights, except to the extent set forth in the Investors'
Agreement.
(e) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant and in lieu
of delivery of any such fractional share upon any exercise hereof, the Company
shall pay to the Holder an amount in cash equal to such fraction multiplied by
the Current Market Price Per Common Share (as defined in paragraph (h)(6)) at
the date of such exercise.
The Company further agrees that it will not change the par value of the
Common Stock from par value $0.001 per share to any higher par value which
exceeds the Exercise Price then in effect, and will reduce the par value of the
Common Stock upon any event described in paragraph (h) that (i) provides for an
increase in the number of shares of Common Stock subject to purchase upon
exercise of this Warrant, in inverse proportion to and effective at the same
time as such number of shares is increased, but only to the extent that such
increase in the number of shares, together with all other such increases after
the date hereof, causes the aggregate Exercise Price of all Warrants (without
giving effect to any exercise thereof) to be greater than ____ or (ii) would,
but for this provision, reduce the Exercise Price below the par value of the
Common Stock.
(f) EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
(1) This Warrant and the Warrant Shares are subject
to the provisions of the Investors' Agreement, including the
restrictions on transfer. Each holder of this Warrant
Certificate by holding the same, consents and agrees that the
registered holder hereof may be treated by the Company and all
other persons dealing with this Warrant Certificate as the
absolute owner hereof for any purpose and as the person
entitled to exercise the rights represented hereby. The
Holder, by its acceptance of this Warrant, will be subject to
the provisions of, and will have the benefits of, the
Investors' Agreement to the extent set forth therein,
including the transfer restrictions and the registration
rights included therein.
(2) Subject to compliance with the transfer
restrictions set forth in the Investors' Agreement, upon
surrender of this Warrant to the Company, together with the
attached Warrant Assignment Form duly executed, the Company
shall, without charge, execute and deliver a new Warrant in
the name of the assignee or assignees named in such instrument
of assignment and, if the Holder's entire interest is not
being assigned, in the name of the Holder and this Warrant
shall promptly be canceled.
(g) LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the
Company of evidence satisfactory to it (in the exercise of its reasonable
discretion) of the loss, theft, destruction or mutilation of this Warrant
Certificate, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant Certificate, if mutilated, the Company shall execute and deliver a new
Warrant Certificate of like tenor and date.
(h) ANTI-DILUTION PROVISIONS. The Exercise Price of this Warrant and
the number of shares of Common Stock for which this Warrant may be exercised
shall be subject to adjustment from time to time upon the occurrence of certain
events as provided in this paragraph (h); provided that notwithstanding anything
to the contrary contained herein, the Exercise Price shall not be less than the
par value of the Common Stock, as such par value may be reduced from time to
time in accordance with paragraph (e).
(1) In case the Company shall at any time after the
date hereof (i) declare a dividend or make a distribution on
Common Stock payable in Common Stock, (ii) subdivide or split
the outstanding Common Stock, (iii) combine or reclassify the
outstanding Common Stock into a smaller number of shares, or
(iv) issue any shares of its capital stock in a
reclassification of Common Stock (including any such
reclassification in connection with a consolidation or merger
in which the Company is the surviving corporation), the
Exercise Price in effect at the time of the record date for
such dividend or distribution or of the effective date of such
subdivision, split, combination or reclassification shall be
proportionately adjusted so that, after giving effect to
paragraph (h)(9), the exercise of this Warrant after such time
shall entitle the holder to receive the aggregate number of
shares of Common Stock or other securities of the Company (or
shares of any security into which such shares of Common Stock
have been reclassified pursuant to clause (iii) or (iv) above)
which, if this Warrant had been exercised immediately prior to
such time, such holder would have owned upon such exercise and
been entitled to receive by virtue of such dividend,
distribution, subdivision, split, combination or
reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur.
(2) In case the Company shall issue or sell any
Common Stock (other than Common Stock issued (I) upon exercise
of the Warrants, (II) pursuant to any Common Stock related
employee compensation plan of the Company approved by the
Company's Board of Directors, or (III) upon exercise or
conversion of any security the issuance of which caused an
adjustment under paragraphs (h)(3) or (h)(4) hereof), the
Exercise Price to be in effect after such issuance or sale
shall be determined by multiplying the Exercise Price in
effect immediately prior to such issuance or sale by a
fraction, the numerator of which shall be the sum of (x) the
number of shares of Common Stock outstanding immediately prior
to the time of such issuance or sale multiplied by the Current
Market Price Per Common Share immediately prior to such
issuance or sale and (y) the aggregate consideration, if any,
to be received by the Company upon such issuance or sale, and
the denominator of which shall be the product of the aggregate
number of shares of Common Stock outstanding immediately after
such issuance or sale and the Current Market Price Per Common
Share immediately prior to such issuance or sale but in no
event will such fraction exceed 1. In case any portion of the
consideration to be received by the Company shall be in a form
other than cash, the fair market value of such noncash
consideration shall be utilized in the foregoing computation.
Such fair market value shall be determined by the Board of
Directors of the Company; provided that if the Principal
Holders shall object to any such determination, the Board of
Directors shall retain an independent appraiser reasonably
satisfactory to the Principal Holders to determine such fair
market value. The Holder shall be notified promptly of any
consideration other than cash to be received by the Company
and furnished with a description of the consideration and the
fair market value thereof, as determined by the Board of
Directors.
(3) In case the Company shall fix a record date for
the issuance of rights, options or warrants to the holders of
its Common Stock or other securities entitling such holders to
subscribe for or purchase for a period expiring within 60 days
of such record date shares of Common Stock (or securities
convertible into shares of Common Stock) at a price per share
of Common Stock (or having a conversion price per share of
Common Stock, if a security convertible into shares of Common
Stock) less than the Current Market Price Per Common Share on
such record date, the maximum number of shares of Common Stock
issuable upon exercise of such rights, options or warrants (or
conversion of such convertible securities) shall be deemed to
have been issued and outstanding as of such record date and
the Exercise Price shall be adjusted pursuant to paragraph
(h)(2) hereof, as though such maximum number of shares of
Common Stock had been so issued for an aggregate consideration
payable by the holders of such rights, options, warrants or
convertible securities prior to their receipt of such shares
of Common Stock. In case any portion of such consideration
shall be in a form other than cash, the fair market value of
such noncash consideration shall be determined as set forth in
paragraph (h)(2) hereof. Such adjustment shall be made
successively whenever such record date is fixed; and in the
event (i) that such rights, options or warrants are not so
issued or expire unexercised, or (ii) of a change in the
number of shares of Common Stock to which the holders of such
rights, options or warrants are entitled (other than pursuant
to adjustment provisions therein which are no more favorable
in their entirety than those contained in this paragraph (h)),
the Exercise Price shall again be adjusted to be the Exercise
Price which would then be in effect in the case of clause (i),
if such record date had not been fixed, or in the case of
clause (ii), if such holder had initially been entitled to
such changed number of shares of Common Stock.
(4) In case the Company shall sell or issue rights,
options (other than options issued pursuant to a plan
described in clause II of paragraph (h)(2)) or warrants
entitling the holders thereof to subscribe for or purchase
Common Stock (or securities convertible into shares of Common
Stock) or shall issue convertible securities, and the price
per share of Common Stock of such rights, options, warrants or
convertible securities (including, in the case of rights,
options or warrants, the price at which they may be exercised)
is less than the Current Market Price Per Common Share, the
maximum number of shares of Common Stock issuable upon
exercise of such rights, options or warrants or upon
conversion of such convertible securities shall be deemed to
have been issued and outstanding as of the date of such sale
or issuance, and the Exercise Price shall be adjusted pursuant
to paragraph (h)(2) hereof as though such maximum number of
shares of Common Stock had been so issued for an aggregate
consideration equal to the aggregate consideration paid for
such rights, options, warrants or convertible securities and
the aggregate consideration payable by the holders of such
rights, options, warrants or convertible securities prior to
their receipt of such shares of Common Stock. In case any
portion of such consideration shall be in a form other than
cash, the fair market value of such noncash consideration
shall be determined as set forth in paragraph (h)(2) hereof.
Such adjustment shall be made successively whenever such
rights, options, warrants or convertible securities are
issued; and in the event (i) that such rights, options or
warrants expire unexercised, or (ii) of a change in the number
of shares of Common Stock to which the holders of such rights,
options, warrants or convertible securities are entitled
(other than pursuant to adjustment provisions therein which
are no more favorable in their entirety than those contained
in this paragraph (h)), the Exercise Price shall again be
adjusted to be the Exercise Price which would then be in
effect in the case of clause (i), if such rights, options,
warrants or convertible securities had not been issued, or in
the case of clause (ii), if such holders had initially been
entitled to such changed number of shares of Common Stock. No
adjustment of the Exercise Price shall be made pursuant to
this paragraph (h)(4) to the extent that the Exercise Price
shall have been adjusted pursuant to paragraph (h)(3) upon the
setting of any record date relating to such rights, options,
warrants or convertible securities and such adjustment fully
reflects the number of shares of Common Stock to which the
holders of such rights, options, warrants or convertible
securities are entitled and the price payable therefor.
(5) In case the Company shall fix a record date for
the making of a distribution to holders of Common Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the surviving
corporation) of evidences of indebtedness, cash, assets or
other property (other than dividends payable in Common Stock
or rights, options or warrants referred to in, and for which
an adjustment is made pursuant to, paragraph (h)(3) hereof),
the Exercise Price to be in effect after such record date
shall be determined by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction,
the numerator of which shall be the Current Market Price Per
Common Share on such record date, less the fair market value
(determined as set forth in paragraph (h)(2) hereof) of the
portion of the assets, cash, other property or evidence of
indebtedness so to be distributed which is applicable to one
share of Common Stock, and the denominator of which shall be
such Current Market Price Per Common Share. Such adjustments
shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made,
the Exercise Price shall again be adjusted to be the Exercise
Price which would then be in effect if such record date had
not been fixed.
(6) For the purpose of any computation under
paragraph (e) or paragraph (h)(2), (3), (4) or (5) hereof, on
any determination date, the Current Market Price Per Common
Share shall be deemed to be the average (weighted by daily
trading volume) of the Daily Prices (as defined below) per
share of the Common Stock for the 20 consecutive trading days
ending three days prior to such date. "Daily Price" means (1)
if the shares of Common Stock then are listed and traded on
the New York Stock Exchange, Inc. ("NYSE"), the closing price
on such day as reported on the NYSE Composite Transactions
Tape; (2) if the shares of Common Stock then are not listed
and traded on the NYSE, the closing price on such day as
reported by the principal national securities exchange on
which the shares are listed and traded; (3) if the shares of
Common Stock then are not listed and traded on any such
securities exchange, the last reported sale price on such day
on the National Market of the National Association of
Securities Dealers, Inc. Automated Quotation System
("NASDAQ"); (4) if the shares of Common Stock then are not
listed and traded on any such securities exchange and not
traded on the NASDAQ National Market, the average of the
highest reported bid and lowest reported asked price on such
day as reported by NASDAQ; or (5) if such shares are not
listed and traded on any such securities exchange, not traded
on the NASDAQ National Market and bid and asked prices are not
reported by NASDAQ, then the average of the closing bid and
asked prices, as reported by The Wall Street Journal for the
over-the-counter market. If on any determination date the
shares of Common Stock are not quoted by any such
organization, the Current Market Price Per Common Share shall
be the fair market value of such shares on such determination
date as determined by the Board of Directors, without regard
to considerations of the lack of liquidity, applicable
regulatory restrictions or any of the transfer restrictions or
other obligations imposed on such shares set forth in the
Investors' Agreement. If the Principal Holders shall object to
any determination by the Board of Directors of the Current
Market Price Per Common Share, the Current Market Price Per
Common Share shall be the fair market value per share of
Common Stock as determined by an independent appraiser
retained by the Company at its expense and reasonably
acceptable to the Principal Holders. For purposes of any
computation under this paragraph (h), the number of shares of
Common Stock outstanding at any given time shall not include
shares owned or held by or for the account of the Company or
its subsidiaries.
(7) No adjustment in the Exercise Price shall be
required unless such adjustment would require an increase or
decrease of at least one percent in such price; provided that
any adjustments which by reason of this paragraph (h)(7) are
not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations
under this paragraph (h) shall be made to the nearest one
tenth of a cent or to the nearest hundredth of a share, as the
case may be.
(8) In the event that, at any time as a result of the
provisions of this paragraph (h), the holder of this Warrant
upon subsequent exercise shall become entitled to receive any
shares of capital stock or other securities of the Company
other than Common Stock, the number of such other shares so
receivable upon exercise of this Warrant shall thereafter be
subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions
contained herein.
(9) Upon each adjustment of the Exercise Price as a
result of the calculations made in paragraphs (h)(1), (2),
(3), (4) or (5) hereof, the number of shares for which this
Warrant is exercisable immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at
the adjusted Exercise Price, that number of shares of Common
Stock obtained by (i) multiplying the number of shares covered
by this Warrant immediately prior to this adjustment of the
number of shares by the Exercise Price in effect immediately
prior to such adjustment of the Exercise Price and (ii)
dividing the product so obtained by the Exercise Price in
effect immediately after such adjustment of the Exercise
Price.
(10) The Company shall notify all Holders of the
fixing of a record date for the purpose of payment of a cash
dividend to holders of Common Stock as soon as reasonably
practicable, but in no event less than 20 days prior to any
such record date.
(11) Not less than 10 nor more than 30 days prior to
the record date or effective date, as the case may be, of any
action which requires or might require an adjustment or
readjustment pursuant to this paragraph (h), the Company shall
forthwith file in the custody of the secretary or any
assistant secretary at its principal executive office and with
its stock transfer agent or its warrant agent, if any, an
officers' certificate showing the adjusted Exercise Price
determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustment and the manner of
computing such adjustment. Each such officers' certificate
shall be signed by the chairman, president or chief financial
officer of the Company and by the secretary or any assistant
secretary of the Company. Each such officers' certificate
shall be made available at all reasonable times for inspection
by the Holder or any holder of a Warrant executed and
delivered pursuant to paragraph (f) and the Company shall,
forthwith after each such adjustment, mail a copy, by
first-class mail, of such certificate to the Holder.
(12) The Holder shall, at its option, be entitled to
receive, in lieu of the adjustment pursuant to paragraph
(h)(5) otherwise required thereof, on the date of exercise of
the Warrants, the evidences of indebtedness, other securities,
cash, property or other assets which such Holder would have
been entitled to receive if it had exercised its Warrants for
shares of Common Stock immediately prior to the record date
with respect to such distribution. The Holder may exercise its
option under this paragraph (h)(12) by delivering to the
Company a written notice of such exercise within seven days of
its receipt of the certificate of adjustment required pursuant
to paragraph (h)(11) to be delivered by the Company in
connection with such distribution.
(i) CONSOLIDATION, MERGER, OR SALE OF ASSETS. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock) or any sale or transfer of all or
substantially all of the assets of the Company or of the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, the Holder shall have the right thereafter to exercise this
Warrant for the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock for which this Warrant may have been exercised
immediately prior to such consolidation, merger, sale or transfer, assuming (i)
such holder of Common Stock is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person and (ii) in the case of a consolidation,
merger, sale or transfer which includes an election as to the consideration to
be received by the holders, such holder of Common Stock failed to exercise its
rights of election, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same for each share
of Common Stock held immediately prior to such consolidation, merger, sale or
transfer by other than a constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this paragraph (i) the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). Adjustments for events subsequent to the effective date of
such a consolidation, merger and sale of assets shall be as nearly equivalent as
may be practicable to the adjustments provided for in this
Warrant. In any such event, effective provisions shall be made in the
certificate or articles of incorporation of the resulting or surviving
corporation, in any contract of sale, conveyance, lease or transfer, or
otherwise so that the provisions set forth herein for the protection of the
rights of the Holder shall thereafter continue to be applicable; and any such
resulting or surviving corporation shall expressly assume the obligation to
deliver, upon exercise, such shares of stock, other securities, cash and
property. The provisions of this paragraph (i) shall similarly apply to
successive consolidations, mergers, sales, leases or transfers.
(j) NOTICES. Any notice, demand or delivery authorized by this Warrant
Certificate shall be in writing and shall be given to the Holder or the Company
as the case may be, at its address (or telecopier number) set forth below, or
such other address (or telecopier number) as shall have been furnished to the
party giving or making such notice, demand or delivery:
If to the Company: Insilco Holding Co.
c/o DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, NY 10172
Telecopy: 212-892-7553
Attention: William F. Dawson, Jr.
If to the Holder: [Holder]
[Address]
[Address]
Telecopy:
Attention:
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy or (ii)
if given by any other means, when received at the address specified herein.
(k) RIGHTS OF THE HOLDER. Prior to the exercise of any Warrant, the
Holder shall not, by virtue hereof, be entitled to any rights of a shareholder
of the Company, including, without limitation, the right to vote, to receive
dividends or other distributions or to receive any notice of meetings of
shareholders or any notice of any proceedings of the Company except as may be
specifically provided for herein.
(l) GOVERNING LAW. THIS WARRANT CERTIFICATE AND ALL RIGHTS ARISING
HEREUNDER SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED AND
ENFORCED IN ACCORDANCE WITH SUCH LAWS.
(m) AMENDMENTS; WAIVERS. Any provision of this Warrant Certificate may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Holder and the Company, or in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
IN WITNESS WHEREOF, the Company has duly caused this Warrant
Certificate to be signed by its duly authorized officer and to be dated as of
____ __ , 1998.
INSILCO CORPORATION
By: /s/ Kenneth H. Koch
-----------------------
Name: Kenneth H. Koch
Title: Vice President and Secretary
Acknowledged and Agreed:
[HOLDER]
By:__________________________
Name:
Title:
WARRANT EXERCISE NOTICE
(To be delivered prior to exercise of the Warrant)
To:Insilco Holding Co.
The undersigned hereby notifies you of its intention to exercise the
Warrant to purchase shares of Common Stock, par value $0.001 per share, of
Insilco Holding Co.
The undersigned intends to exercise the Warrant to purchase __________
shares of Common Stock (the "Shares") at $____ per Share (the Exercise Price
currently in effect pursuant to the Warrant). The undersigned intends to pay the
aggregate Exercise Price for the Shares in cash, or by certified or official
bank or bank cashier's check (or a combination of cash and check), as indicated
below.
-OR-
The undersigned intends to exercise the Warrant to purchase __________
Shares of Common Stock (the "Shares") and wishes, in lieu of paying the Exercise
Price of $____ per Share currently in effect pursuant to the Warrant, to receive
that number of shares reduced by a number of shares of Common Stock having an
aggregate Fair Market Value (as defined in the Warrant) equal to the aggregate
Exercise Price for the Shares.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase of
___________ shares of Common Stock (the "Shares"), par value $0.001 per Share,
of Insilco Holding Co. (the "Company") at $_____ per Share (the Exercise Price
currently in effect pursuant to the Warrant) and herewith makes payment of
$___________ (such payment being made in cash or by certified or official bank
or bank cashier's check payable to the order of the Company or by any permitted
combination of such cash or check), all on the terms and conditions specified in
the within Warrant Certificate, surrenders this Warrant Certificate and all
right, title and interest therein to the Company and directs that the Shares
deliverable upon the exercise of this Warrant be registered or placed in the
name and at the address specified below and delivered thereto.
-OR-
The undersigned irrevocably exercises the Warrant for the purchase of
___________ shares of Common Stock (the "Shares"), par value $0.001 per Share,
of Insilco Holding Co. (the "Company") at $_____ per Share (the Exercise Price
currently in effect pursuant to the Warrant) (provided that in lieu of payment
of $_________, the undersigned will receive a number of Shares reduced by a
number of shares of Common Stock having an aggregate Fair Market Value (as
defined in the Warrant) equal to the aggregate Exercise Price for the Shares),
all on the terms and conditions specified in the within Warrant Certificate,
surrenders this Warrant Certificate and all right, title and interest therein to
the Company and directs that the Shares deliverable upon the exercise of this
Warrant be registered or placed in the name and at the address specified below
and delivered thereto.
Date: __________ __, ____.
--------------------------------
(Signature of Owner)
--------------------------------
(Street Address)
--------------------------------
(City) (State) (Zip Code)
Payment: $___________ cash
$___________ check
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised portion of the Warrant evidenced by the
within Warrant Certificate to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
WARRANT ASSIGNMENT FORM
Dated___________
FOR VALUE RECEIVED,___________________________________________________________
hereby sells, assigns and transfers unto,
_____________________________________________________________ (the "Assignee"),
(please type or print in block letters)
______________________________________________________________________________
(insert address)
its right to purchase up to _______ shares of Common Stock represented
by this Warrant and does hereby irrevocably constitute and appoint
_______________________ as its Attorney, to transfer the same on the
books of the Company, with full power of substitution in the premises.
Signature_____________________________
EXHIBIT 99.7
AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF MERGER
AMENDMENT dated as of June 8, 1998 among INSILCO CORPORATION, a
Delaware corporation ("Insilco" or the "Company"), INSILCO HOLDING CO., a
Delaware corporation (formerly known as INR Holding Co.) ("ExistingSub") and
SILKWORM ACQUISITION CORPORATION, a Delaware corporation ("MergerSub").
WHEREAS, the Company, ExistingSub and MergerSub have previously entered
into an Agreement and Plan of Merger (as amended hereby, the "Merger Agreement")
dated as of March 24, 1998, providing for the merger of MergerSub with and into
ExistingSub; and
WHEREAS, the Company, ExistingSub and MergerSub desire to amend the
Merger Agreement as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. References. Unless otherwise specifically defined herein,
each term used herein which is defined in the Merger Agreement has the meaning
assigned to such term in the Merger Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Merger Agreement shall from and after the effective date of this Amendment refer
to the Merger Agreement as amended hereby, except in any instance in the Merger
Agreement where any such reference relates to the date of the execution of the
Merger Agreement in which instance such reference shall relate to the Merger
Agreement, as unamended hereby.
SECTION 2. Amendments. The Merger Agreement is hereby amended as
follows:
(a) The reference in Section 1.02(e)(iv)(A) to the number "0.03419" is
replaced with "0.03378".
(b) The reference in Section 1.02(e)(iv)(B) to the number "$42.97" is
replaced with "$43.47".
(c) The references in Sections 1.05(a), 5.04(c) and 7.05 to the number
"$44.50" are replaced with "$45.00".
(d) The reference in Section 1.06(b) to the number "$44.49" is replaced
with "$44.99".
(e) The reference in Section 4.08 to the number "$54,999,997.50" is
replaced with "$54,999,990.00".
(f) The reference in Section 4.08 to the number " 1,235,955" is
replaced with "1,222,222".
(g) The reference in Section 4.08 to the number "111,347" is replaced
with "110,453".
SECTION 3. Counterparts; Effectiveness. This Amendment may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Amendment shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment or have caused this Amendment to be duly executed by their respective
authorized officers as of the day and year first above written.
INSILCO CORPORATION
By: /s/ Robert L. Smialek
-------------------------
Name: Robert L. Smialek
Title: President, Chief Executive
Officer and Director
INSILCO HOLDING CO.
By: /s/ Kenneth H. Koch
-------------------------
Name: Kenneth H. Koch
Title: Vice President and Secretary
SILKWORM ACQUISITION
CORPORATION
By: /s/ William F. Dawson, Jr.
-------------------------
Name: William F. Dawson, Jr.
Title: Vice President and Secretary
EXHIBIT 99.8
AMENDMENT NO. 2
TO AGREEMENT AND PLAN OF MERGER
AMENDMENT dated as of August 12, 1998 among INSILCO CORPORATION, a
Delaware corporation ("Insilco" or the "Company"), INSILCO HOLDING CO., a
Delaware corporation (formerly known as INR Holding Co.) ("ExistingSub") and
SILKWORM ACQUISITION CORPORATION, a Delaware corporation ("MergerSub").
WHEREAS, the Company, ExistingSub and MergerSub have previously entered
into an Agreement and Plan of Merger (as amended to date and hereby, the "Merger
Agreement") dated as of March 24, 1998, providing for the merger of MergerSub
with and into ExistingSub; and
WHEREAS, the Company, ExistingSub and MergerSub desire to amend the
Merger Agreement as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. References. Unless otherwise specifically defined herein,
each term used herein which is defined in the Merger Agreement has the meaning
assigned to such term in the Merger Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Merger Agreement shall from and after the effective date of this Amendment refer
to the Merger Agreement as amended hereby, except in any instance in the Merger
Agreement where any such reference relates to the date of the execution of the
Merger Agreement in which instance such reference shall relate to the Merger
Agreement, as unamended hereby.
SECTION 2. Amendments. The Merger Agreement is hereby amended as
follows:
(a) Article FOURTH to the proposed certificate of incorporation of
ExistingSub as set forth in Exhibit A to the Merger Agreement shall be deleted
in its enirety, and replaced with the following:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 18,000,000
consisting of 15,000,000 shares of Common Stock, par value
$0.001 per share (the "Common Stock") and 3,000,000 shares of
Preferred Stock, par value $0.001 per share (the "Preferred
Stock"). The Board of Directors is hereby empowered to
authorize by resolution or resolutions from time to time the
issuance of one or more classes or series of Preferred Stock
and fix the designations, powers, preferences and relative,
participating, optional or other rights, if any, and the
qualifications, limitations or restrictions thereof, if any,
with respect to each such class or series of Preferred Stock
and the number of shares constituting each such class or
series, and to increase or decrease the number of shares of
any such class or series to the extent permitted by Delaware
Law."
(b) The Certificate of Designations, Preferences and Rights of the 15%
Senior Exchangeable Preferred Stock Due 2010 as set forth in Exhibit 1 to this
Amendment shall be appended to Exhibit A to the Merger Agreement.
SECTION 3. Counterparts; Effectiveness. This Amendment may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Amendment shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment or have caused this Amendment to be duly executed by their respective
authorized officers as of the day and year first above written.
INSILCO CORPORATION
By: /s/ Kenneth H. Koch
-----------------------
Name: Kenneth H. Koch
Title: Vice President and General
Counsel
INSILCO HOLDING CO.
By: /s/ Kenneth H. Koch
-----------------------
Name: Kenneth H. Koch
Title: Vice President and Secretary
SILKWORM ACQUISITION
CORPORATION
By: /s/ William F. Dawson, Jr.
------------------------------
Name: William F. Dawson, Jr.
Title: Vice President and Secretary
EXHIBIT 1
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF 15% SENIOR EXCHANGEABLE
PREFERRED STOCK DUE 2010
of
INSILCO HOLDING CO.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, the undersigned, Kenneth H.Koch, Vice President and Secretary, and
David A. Kauer, Vice President and Treasurer, of Insilco Holding Co., a Delaware
corporation (hereinafter called the "Corporation"), pursuant to the provisions
of Sections 103 and 151 of the General Corporation Law of the State of Delaware,
do hereby make this Certificate of Designations and do hereby state and certify
that pursuant to the authority expressly vested in the Board of Directors of the
Corporation by the Certificate of Incorporation, the Board of Directors duly
adopted the following resolution:
RESOLVED, that, pursuant to Article Fourth of the Certificate of
Incorporation (which authorizes 3,000,000 shares of preferred stock, $0.001 par
value ("Preferred Stock"), of which no shares of Preferred Stock are currently
issued and outstanding), the Board of Directors hereby fixes the powers,
designations, preferences and relative, participating, optional and other
special rights, and the qualifications, limitations and restrictions, of a
series of Preferred Stock.
RESOLVED, that each share of such series of Preferred Stock shall rank
equally in all respects and shall be subject to the following provisions:
(1) Number and Designation. 3,000,000 shares of the Preferred Stock of
the Corporation shall be designated as 15% Senior Exchangeable Preferred Stock
Due 2010 (the "Senior Preferred Stock").
(2) Rank. The Senior Preferred Stock shall, with respect to dividend
rights and rights on liquidation, dissolution and winding up, rank prior to all
classes of or series of common stock of the Corporation, including the
Corporation's common stock, par value $0.001 per share ("Common Stock"), and
each other class of capital stock of the Corporation, the terms of which provide
that such class shall rank junior to the Senior Preferred Stock or the terms of
which do not specify any rank relative to the Senior Preferred Stock. All equity
securities of the Corporation to which the Senior Preferred Stock ranks prior
(whether with respect to dividends or upon liquidation, dissolution, winding up
or otherwise), including the Common Stock, are collectively referred to herein
as the "Junior Securities." All equity securities of the Corporation with which
the Senior Preferred Stock ranks on a parity (whether with respect to dividends
or upon liquidation, dissolution or winding up) are collectively referred to
herein as the "Parity Securities." The respective definitions of Junior
Securities and Parity Securities shall also include any rights or options
exercisable for or convertible into any of the Junior Securities and Parity
Securities, as the case may be. The Senior Preferred Stock shall be subject to
the creation of Junior Securities.
(3) Dividends. (a) (i) The holders of shares of Senior Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the payment of dividends,
dividends (subject to Sections 3(a)(ii) and (iii) hereof) at a rate equal to 15%
per annum (on the basis of a 360 day year) (the "Dividend Rate") on the
Liquidation Value of each share of Senior Preferred Stock on and as of the most
recent Dividend Payment Date (as defined below). In the event the Corporation is
unable or shall fail to discharge its obligation to redeem all outstanding
shares of Senior Preferred Stock pursuant to paragraph 5(b) or 5(c) hereof, the
Dividend Rate shall increase by .25 percent per quarter (each, a "Default
Dividend") for each quarter or portion thereof following the date on which such
redemption was required to be made until cured, provided that the aggregate
increase shall not exceed 5%. Such dividends shall be payable in the manner set
forth below in Sections 3(a)(ii) and (iii) quarterly on January 31, April 30,
July 31 and October 31 of each year (unless such day is not a business day, in
which event on the next succeeding business day) (each of such dates being a
"Dividend Payment Date" and each such quarterly period being a "Dividend
Period"). Such dividends shall be cumulative from the date of issue, whether or
not in any Dividend Period or Periods there shall be funds of the Corporation
legally available for the payment of such dividends.
(ii) Prior to August 1, 2003 (the "Cash Pay Date"), dividends
shall not be payable in cash to holders of shares of Senior
Preferred Stock but shall, subject to Section 3(b) hereof,
accrete to the Liquidation Value in accordance with Section
4(a) hereof.
(iii) Following the Cash Pay Date, each such dividend shall be
payable in cash on the Liquidation Value per share of the
Senior Preferred Stock, in equal quarterly amounts (to which
the Default Dividend, if any, shall be added), to the holders
of record of shares of the Senior Preferred Stock, as they
appear on the stock records of the Corporation at the close of
business on such record dates, not more than 60 days or less
than 10 days preceding the payment dates thereof, as shall be
fixed by the Board of Directors. Accrued and unpaid dividends
for any past Dividend Periods may be declared and paid at any
time, without reference to any Dividend Payment Date, to
holders of record on such date, not more than 45 days
preceding the payment date thereof, as may be fixed by the
Board of Directors.
(b) At the written request of the holders of a majority of the shares
of Senior Preferred Stock, the Corporation shall, commencing on the first
Dividend Payment Date after such request and ending on the Cash Pay Date, be
required to pay all dividends on shares of Senior Preferred Stock by the
issuance of additional shares of Senior Preferred Stock ("Additional Shares").
The Additional Shares shall be identical to all other shares of Senior Preferred
Stock, except as set forth in Section 4. For the purposes of determining the
number of Additional Shares to be issued as dividends pursuant to this Paragraph
(b), such Additional Shares shall be valued at their Applicable Liquidation
Value as provided in Section 4(c).
(c) Holders of shares of Senior Preferred Stock shall not be entitled
to any dividends, whether payable in cash, property or stock, in excess of the
cumulative dividends, as herein provided, on the Senior Preferred Stock. Except
as provided in this Section 3, no interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on the Senior
Preferred Stock that may be in arrears.
(d) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends, except as described in the next succeeding sentence,
shall be declared or paid or set apart for payment on Parity Securities, for any
period unless (to the extent such dividends are payable in cash) full cumulative
dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for such payment on the Senior
Preferred Stock for all Dividend Periods terminating on or prior to the date of
payment of the dividend on such class or series of Parity Securities. When (to
the extent such dividends are payable in cash) dividends are not paid in full or
a sum sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon shares of the Senior Preferred Stock and all dividends declared
upon any other class or series of Parity Securities shall (in each case, to the
extent payable in cash) be declared ratably in proportion to the respective
amounts of dividends accumulated and unpaid on the Senior Preferred Stock and
accumulated and unpaid on such Parity Securities.
(e) So long as any shares of the Senior Preferred Stock are
outstanding, no dividends (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Junior Securities) shall be declared or paid or set apart for payment or other
distribution declared or made upon Junior Securities, nor shall any Junior
Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan of the Corporation or any
subsidiary) (all such dividends, distributions, redemptions or purchases being
hereinafter referred to as a "Junior Securities Distribution") for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation, directly or
indirectly (except by conversion into or exchange for Junior Securities), unless
in each case (i) the full cumulative dividends on all outstanding shares of the
Senior Preferred Stock and any other Parity Securities shall (to the extent
payable in cash) have been paid or set apart for payment for all past Dividend
Periods with respect to the Senior Preferred Stock and all past dividend periods
with respect to such Parity Securities and (ii) (to the extent payable in cash)
sufficient funds shall have been paid or set apart for the payment of the
dividend for the current Dividend Period with respect to the Senior Preferred
Stock and the current dividend period with respect to such Parity Securities.
(4) Liquidation Preference. (a) In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
before any payment or distribution of the assets of the Corporation (whether
capital or surplus) shall be made to or set apart for the holders of Junior
Securities, the holders of the shares of Senior Preferred Stock shall be
entitled to receive an amount equal to the Liquidation Value of such share plus
any accrued and unpaid cash dividends to the date of distribution. "Liquidation
Value" on any date means, with respect to (x) any share of Senior Preferred
Stock other than any Additional Shares, the sum of (1) $25.00 per share and (2)
the aggregate of all dividends accreted on such share until the most recent
Dividend Payment Date upon which an accretion to Liquidation Value has occurred
(or if such date is a Dividend Payment Date upon which an accretion to
Liquidation Value has occurred, such date), provided that in the event of an
actual liquidation, dissolution or winding up of the Corporation or the
redemption of any shares of Senior Preferred Stock pursuant to Section 5
hereunder, the amount referred to in (2) shall be calculated by including
dividends accreting to the actual date of such liquidation, dissolution or
winding up or the redemption date, as the case may be, rather than the Dividend
Payment Date referred to above and provided further that in no event will
dividends accrete beyond the earlier of (i) the Cash Pay Date and (ii) the most
recent Dividend Payment Date prior to the Dividend Payment Date on which
dividends on the Senior Preferred Stock are payable in Additional Shares and (y)
any Additional Share, the Applicable Liquidation Value. All accretions to
Liquidation Value will be calculated using compounding on a quarterly basis.
Except as provided in the preceding sentences, holders of shares of Senior
Preferred Stock shall not be entitled to any distribution in the event of
liquidation, dissolution or winding up of the affairs of the Corporation. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of the
shares of Senior Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any Parity Securities,
then such assets, or the proceeds thereof, shall be distributed among the
holders of shares of Senior Preferred Stock and any such other Parity Securities
ratably in accordance with the respective amounts that would be payable on such
shares of Senior Preferred Stock and any such other stock if all amounts payable
thereon were paid in full. For the purposes of this paragraph (4), (i) a
consolidation or merger of the Corporation with one or more corporations, or
(ii) a sale or transfer of all or substantially all of the Corporation's assets,
shall not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of any Parity Securities,
after payment shall have been made in full to the holders of the Senior
Preferred Stock, as provided in this paragraph (4), any other series or class or
classes of Junior Securities shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of the Senior Preferred
Stock shall not be entitled to share therein.
(c) The "Applicable Liquidation Value" of any Additional Shares shall
be the Liquidation Value of Senior Preferred Stock outstanding immediately prior
to the first Dividend Payment Date occurring after a request for payment in
Additional Shares has been made in accordance with Section 3(b).
(5) Redemption. (a) Redemption At the Option of the Corporation. To the
extent the Corporation shall have funds legally available for such payment, the
Corporation may, at its option, redeem shares of Senior Preferred Stock, at any
time in whole but not in part, at redemption prices per share in cash set forth
in the table below, together with accrued and unpaid cash dividends thereon to
the date fixed for redemption, without interest:
Prior to
August 1, Percentage of Liquidation Value
--------- -------------------------------
2003 115.000
2004 107.500
2005 105.000
2006 102.500
Thereafter 100.000
(b) Redemption In the Event of a Change of Control. In the event of a
Change of Control, the Corporation shall, to the extent it shall have funds
legally available for such payment, offer to redeem all of the shares of Senior
Preferred Stock then outstanding, and shall redeem the shares of Senior
Preferred Stock of any holder of such shares that shall consent to such
redemption, upon a date no later than 30 days following the Change in Control,
at a redemption price per share equal to 101% of the Liquidation Value, in cash,
plus accrued and unpaid cash dividends thereon to the date fixed for redemption,
without interest.
"Change of Control" means such time as: (a) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934, as amended), other than any person or group comprised solely of the
Initial Investors, has become the beneficial owner, by way of merger,
consolidation or otherwise, of 50% or more of the voting power of all classes of
voting securities of the Corporation, and such person or group has become the
beneficial owner of a greater percentage of the voting power of all classes of
voting securities of the Corporation than that beneficially owned by the Initial
Investors; or (b) a sale or transfer of all or substantially all of the assets
of the Corporation to any person or group (other than any group consisting
solely of the Initial Investors or their affiliates) has been consummated; or
(c) during any period of two consecutive years, individuals who at the beginning
of such period constituted the Board of Directors of the Corporation (together
with any new directors whose election was approved by a vote of a majority of
the directors then still in office, who either were directors at the beginning
of such period or whose election or nomination for the election was previously
so approved) cease for any reason to constitute a majority of the directors of
the Corporation, then in office.
"Initial Investors" means the Stockholders (determined as of the
issuance of the Preferred Stock) and their Permitted Transferees, each as
defined in the Investors' Agreement.
"Investors' Agreement" means the Investors' Agreement dated as of
August 17, 1998 among Insilco Holding Co., DLJ Merchant Banking Partners II,
L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II, C.V.,
DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium-A, L.P., DLJMB Funding II, Inc., DLJ EAB
Partners, L.P., DLJ First ESC L.P., UK Investment Plan 1997 Partners, DLJ ESC
II, L.P., (collectively, the "DLJMB Funds"), and 399 Venture Partners, Inc., as
amended
(c) Mandatory Redemption. To the extent the Corporation shall have
funds legally available for such payment, on August 1, 2010, if any shares of
the Senior Preferred Stock shall be outstanding, the Corporation shall redeem
all outstanding shares of the Senior Preferred Stock, at a redemption price
equal to the aggregate Liquidation Value, in cash, together with any accrued and
unpaid cash dividends thereon to the date fixed for redemption, without
interest.
(d) Status of Redeemed Shares. Shares of Senior Preferred Stock which
have been issued and reacquired in any manner, including shares purchased or
redeemed, shall (upon compliance with any applicable provisions of the laws of
the State of Delaware) have the status of authorized and unissued shares of the
class of Preferred Stock undesignated as to series and may be redesignated and
reissued as part of any series of the Preferred Stock; provided that no such
issued and reacquired shares of Senior Preferred Stock shall be reissued or sold
as Senior Preferred Stock.
(e) Failure to Redeem. If the Corporation is unable or shall fail to
discharge its obligation to redeem all outstanding shares of Senior Preferred
Stock pursuant to paragraph (5)(b) or 5(c) (each, a "Mandatory Redemption
Obligation"), such Mandatory Redemption Obligation shall be discharged as soon
as the Corporation is able to discharge such Mandatory Redemption Obligation. If
and so long as any Mandatory Redemption Obligation with respect to the Senior
Preferred Stock shall not be fully discharged, the Corporation shall not (i)
directly or indirectly, redeem, purchase, or otherwise acquire any Parity
Security or discharge any mandatory or optional redemption, sinking fund or
other similar obligation in respect of any Parity Securities (except in
connection with a redemption, sinking fund or other similar obligation to be
satisfied pro rata with the Senior Preferred Stock) or (ii) in accordance with
paragraph 3(e), declare or make any Junior Securities Distribution, or, directly
or indirectly, discharge any mandatory or optional redemption, sinking fund or
other similar obligation in respect of the Junior Securities.
(f) Failure to Pay Dividends. Notwithstanding the foregoing provisions
of this paragraph (5), unless full cumulative cash dividends (whether or not
declared) on all outstanding shares of Senior Preferred Stock shall have been
paid or contemporaneously are declared and paid or set apart for payment for all
dividend periods terminating on or prior to the applicable redemption date, none
of the shares of Senior Preferred Stock shall be redeemed, and no sum shall be
set aside for such redemption, unless shares of Senior Preferred Stock are
redeemed pro rata.
(6) Procedure for Redemption. (a) In the event the Corporation shall
redeem shares of Senior Preferred Stock pursuant to Sections 5(a) or (c), notice
of such redemption shall be given by first class mail, postage prepaid, mailed
not less than 30 days nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed at such holder's address as
the same appears on the stock register of the Corporation; provided that neither
the failure to give such notice nor any defect therein shall affect the validity
of the giving of notice for the redemption of any share of Senior Preferred
Stock to be redeemed except as to the holder to whom the Corporation has failed
to give said notice or except as to the holder whose notice was defective. Each
such notice shall state: (i) the redemption date; (ii) the number of shares of
Senior Preferred Stock to be redeemed; (iii) the redemption price; (iv) the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price; and (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date.
(b) In the case of any redemption pursuant to Sections 5(a) or (c)
hereof, notice having been mailed as provided in Section 6(a) hereof, from and
after the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price of the shares called for
redemption), dividends on the shares of Senior Preferred Stock so called for
redemption shall cease to accrue, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance with
said notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation shall so
require and the notice shall so state), such share shall be redeemed by the
Corporation at the redemption price aforesaid. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder thereof.
(c) In the case of a redemption pursuant to Section 5(b) hereof, notice
of such redemption shall be given by first class mail, postage prepaid, mailed
not more than 10 days following the occurrence of the Change of Control and not
less than 20 days prior to the redemption date, to each holder of record of the
shares to be redeemed at such holder's address as the same appears on the stock
register of the Corporation; provided that neither the failure to give such
notice nor any defect therein shall affect the validity of the giving of notice
for the redemption of any share of Senior Preferred Stock to be redeemed except
as to the holder to whom the Corporation has failed to give said notice or
except as to the holder whose notice was defective. Each such notice shall
state: (i) that a Change of Control has occurred; (ii) the redemption date;
(iii) the redemption price; (iv) that such holder may elect to cause the
Corporation to redeem all or any of the shares of Senior Preferred Stock held by
such holder; (v) the place or places where certificates for such shares are to
be surrendered for payment of the redemption price; and (vi) that dividends on
the shares the holder elects to cause the Corporation to redeem will cease to
accrue on such redemption date.
Upon receipt of such notice, the holder shall, within 20 days of
receipt thereof, return such notice to the Corporation indicating the number of
shares of Senior Preferred Stock such holder shall elect to cause the
Corporation to redeem, if any.
(d) In the case of a redemption pursuant to Section 5(b) hereof, notice
having been mailed as provided in Section 6(c) hereof, from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the redemption price of the shares called for
redemption), dividends on such shares of Senior Preferred Stock as the holder
elects to cause the Corporation to redeem shall cease to accrue, and all rights
of the holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon surrender
in accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such share shall be
redeemed by the Corporation at the redemption price aforesaid. In case fewer
than all the shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(7) Exchange. (a) Subject to the provisions of this paragraph (7) the
Corporation may, at its option, at any time and from time to time on any
Dividend Payment Date, exchange, to the extent it is legally permitted to do so,
all, but not less than all, outstanding shares (and fractional shares) of Senior
Preferred Stock, for Exchange Debentures, provided that (i) on or prior to the
date of exchange the Corporation shall have paid to or declared and set aside
for payment to the holders of outstanding shares of Senior Preferred Stock all
accrued and unpaid cash dividends on shares of Senior Preferred Stock through
the exchange date in accordance with the next succeeding paragraph; (ii) no
event of default under the indenture (as defined in such indenture) governing
the Exchange Debentures shall have occurred and be continuing; and (iii) no
shares of Senior Preferred Stock are held on such date by the DLJMB Funds or any
of their Affiliates, or any of their Permitted Transferees. The principal amount
of Exchange Debentures deliverable upon exchange of a share of Senior Preferred
Stock, adjusted as hereinafter provided, shall be determined in accordance with
the Exchange Ratio (as defined below).
Cash dividends on any shares of Senior Preferred Stock exchanged for
Exchange Debentures which have accrued but have not been paid as of the date of
exchange shall be paid in cash. In no event shall the Corporation issue Exchange
Debentures in denominations other than $1,000 or in an integral multiple
thereof. Cash will be paid in lieu of any such fraction of an Exchange Debenture
which would otherwise have been issued (which shall be determined with respect
to the aggregate principal amount of Exchange Debentures to be issued to a
holder upon any such exchange). Interest will accrue on the Exchange Debentures
from the date of exchange.
Prior to effecting any exchange hereunder, the Corporation shall
appoint a trustee to serve in the capacity contemplated by an indenture between
the Corporation and such trustee, containing customary terms and conditions.
The Exchange Ratio shall be, as of any Dividend Payment Date, $1.00 (or
fraction thereof) of principal amount of Exchange Debenture for each $1.00 of
(i) Liquidation Value plus (ii) accrued and unpaid cash dividends, if any, per
share of Senior Preferred Stock held by a holder on the applicable exchange
date.
"Affiliates" shall have the meaning ascribed such term in the
Investors' Agreement.
"Exchange Debentures" means 15% Subordinated Exchange Debentures due
2010 of the Corporation, to be issued pursuant to an indenture between the
Corporation and a trustee, containing customary terms and conditions, in
accordance with the Term Sheet attached as Annex A hereto.
"Permitted Transferees" shall have the meaning ascribed to such term in
the Investors' Agreement.
(b) Procedure for Exchange. (i) In the event the Corporation shall
exchange shares of Senior Preferred Stock, notice of such exchange shall be
given by first class mail, postage prepaid, mailed not less than 30 days nor
more than 60 days prior to the exchange date, to each holder of record of the
shares to be exchanged at such holder's address as the same appears on the stock
register of the Corporation; provided that neither the failure to give such
notice nor any defect therein shall affect the validity of the giving of notice
for the exchange of any share of Senior Preferred Stock to be exchanged except
as to the holder to whom the Corporation has failed to give said notice or
except as to the holder whose notice was defective. Each such notice shall
state: (A) the exchange date; (B) the number of shares of Senior Preferred Stock
to be exchanged and, if fewer than all the shares held by such holder are to be
exchanged, the number of shares to be exchanged from such holder; (C) the
Exchange Ratio; (D) the place or places where certificates for such shares are
to be exchanged for notes evidencing the Exchange Debentures to be received by
the exchanging holder; and (E) that dividends on the shares to be exchanged will
cease to accrue on such exchange date.
(ii) Prior to giving notice of intention to exchange, the
Corporation shall execute and deliver with a bank or trust
company selected by the Corporation an indenture containing
customary terms and conditions. The Corporation will cause the
Exchange Debentures to be authenticated on the Dividend
Payment Date on which the exchange is effective, and will pay
interest on the Exchange Debentures at the rate and on the
dates specified in such indenture from the exchange date.
The Corporation will not give notice of its intention
to exchange under paragraph 6(b)(i) hereof unless it shall
file at the place or places (including a place in the Borough
of Manhattan, The City of New York) maintained for such
purpose an opinion of counsel (who may be an employee of the
Corporation) to the effect that (i) the indenture has been
duly authorized, executed and delivered by the Corporation,
has been duly qualified under the Trust Indenture Act of 1939
(or that such qualification is not necessary) and constitutes
a valid and binding instrument enforceable against the
Corporation in accordance with its terms (subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and
subject to such other qualifications as are then customarily
contained in opinions of counsel experienced in such matters),
(ii) the Exchange Debentures have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the indenture and delivered in exchange for the
shares of Preferred Stock, will constitute valid and binding
obligations of the Corporation entitled to the benefits of the
indenture (subject as aforesaid), (iii) neither the execution
nor delivery of the indenture or the Exchange Debentures nor
compliance with the terms, conditions or provisions of such
instruments will result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or agreement or instrument,
known to such counsel, to which the Corporation or any of its
subsidiaries is a party or by which it or any of them is
bound, or any decree, judgment, order, rule or regulation,
known to such counsel, of any court or governmental agency or
body having jurisdiction over the Corporation and such
subsidiaries or any of their properties, (iv) the Exchange
Debentures have been duly registered for such exchange with
the Securities and Exchange Commission under a registration
statement that has become effective under the Securities Act
of 1933 (the "Act") or that the exchange of the Exchange
Debentures for the shares of Senior Preferred Stock is exempt
from registration under the Act, and (v) the Corporation has
sufficient legally available funds for such exchange such that
such exchange is permitted under applicable law.
(iii) Notice having been mailed as aforesaid, from and after
the exchange date (unless default shall be made by the
Corporation in issuing Exchange Debentures in exchange for the
shares called for exchange), dividends on the shares of Senior
Preferred Stock so called for exchange shall cease to accrue,
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation
the Exchange Debentures and any rights such holder, upon the
exchange, may have as a holder of the Exchange Debenture)
shall cease. Upon surrender in accordance with said notice of
the certificates for any shares so exchanged (properly
endorsed or assigned for transfer, if the Board of Directors
of the Corporation shall so require and the notice shall so
state), such share shall be exchanged by the Corporation for
the Exchange Debentures at the Exchange Ratio. In case fewer
than all the shares represented by any such certificate are
exchanged, a new certificate shall be issued representing the
unexchanged shares without cost to the holder thereof.
(iv) Each exchange shall be deemed to have been effected
immediately after the close of business on the relevant
Dividend Payment Date, and the person in whose name or names
any Exchange Debentures shall be issuable upon such exchange
shall be deemed to have become the holder of record of the
Exchange Debentures represented thereby at such time on such
Dividend Payment Date.
(v) Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon exchange of the
Senior Preferred Stock, the Corporation shall comply with all
applicable federal and state laws and regulations which
require action to be taken by the Corporation.
(c) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of notes
evidencing Exchange Debentures on exchange of the Senior Preferred Stock
pursuant hereto; provided that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of Exchange Debentures in a name other than that of the holder of the
Senior Preferred Stock to be exchanged and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(8) Voting Rights. (a) The holders of record of shares of
Senior Preferred Stock shall not be entitled to any voting rights except as
hereinafter provided in this paragraph (8), as otherwise provided by law or as
provided in the Investors' Agreement.
(b) If and whenever (i) four consecutive or six quarterly cash
dividends payable on the Senior Preferred Stock have not been paid in full, (ii)
for any reason (including the reason that funds are not legally available for a
redemption), the Corporation shall have failed to discharge any Mandatory
Redemption Obligation (including a redemption in the Event of a Change of
Control pursuant to Section 5(b) hereof), (iii) the Corporation shall have
failed to provide the notice required by Section 6(d) hereof within the time
period specified in such section or (iv) the Corporation shall have failed to
comply with Sections 3(d), 3(e) or 8(c) hereof, (1) the number of directors then
constituting the Board of Directors shall be increased by two and the holders of
a majority of the outstanding shares of Senior Preferred Stock, together with
the holders of shares of every other series of preferred stock upon which like
rights have been conferred and are exercisable (resulting form either the
failure to pay dividends or the failure to redeem) (any such series is referred
to as the "Preferred Shares"), voting as a single class regardless of series,
shall be entitled to elect the two additional directors to serve on the Board of
Directors at any annual meeting of stockholders or special meeting held in place
thereof, or at a special meeting of the holders of the Senior Preferred Stock
and the Preferred Shares called as hereinafter provided. Whenever (i) all
arrears in cash dividends on the Senior Preferred Stock and the Preferred Shares
then outstanding shall have been paid and cash dividends thereon for the current
quarterly dividend period shall have been paid or declared and set apart for
payment, (ii) the Corporation shall have fulfilled its Mandatory Redemption
Obligation, (iii) fulfilled its obligation to provide notice as specified in
subsection (b)(iii) hereof, or (iv) the Corporation shall have complied with
Sections 3(d), 3(e), or 8(c) hereof, as the case may be, then the right of the
holders of the Senior Preferred Stock to elect such additional two directors
shall cease (but subject always to the same provisions for the vesting of such
voting rights in the case of any similar future (i) arrearage in six consecutive
quarterly cash dividends, (ii) failure to fulfill any Mandatory Redemption
Obligation, (iii) failure to fulfill the obligation to provide the notice
required by Section 6(d) hereof within the time period specified in such section
or (iv) failure to comply with Sections 3(d), 3(e), or 8(c)) and the terms of
office of all persons elected as directors by the holders of the Senior
Preferred Stock shall forthwith terminate and the number of the Board of
Directors shall be reduced accordingly. At any time after such voting power
shall have been so vested in the holders of shares of Senior Preferred Stock and
the Preferred Shares, the secretary of the Corporation may, and upon the written
request of any holder of Senior Preferred Stock (addressed to the secretary at
the principal office of the Corporation) shall, call a special meeting of the
holders of the Senior Preferred Stock and of the Preferred Shares for the
election of the two directors to be elected by them as herein provided, such
call to be made by notice similar to that provided in the Bylaws of the
Corporation for a special meeting of the stockholders or as required by law. If
any such special meeting required to be called as above provided shall not be
called by the secretary within 20 days after receipt of any such request, then
any holder of shares of Senior Preferred Stock may call such meeting, upon the
notice above provided, and for that purpose shall have access to the stock books
of the Corporation. The directors elected at any such special meeting shall hold
office until the next annual meeting of the stockholders or special meeting held
in lieu thereof if such office shall not have previously terminated as above
provided. If any vacancy shall occur among the directors elected by the holders
of the Senior Preferred Stock and the Preferred Shares, a successor shall be
elected by the Board of Directors, upon the nomination of the then-remaining
director elected by the holders of the Senior Preferred Stock and the Preferred
Shares or the successor of such remaining director, to serve until the next
annual meeting of the stockholders or special meeting held in place thereof if
such office shall not have previously terminated as provided above.
(c) Without the written consent of a majority of the outstanding shares
of Senior Preferred Stock or the vote of holders of a majority of the
outstanding shares of Senior Preferred Stock at a meeting of the holders of
Senior Preferred Stock called for such purpose, the Corporation will not (i)
amend, alter or repeal any provision of the Certificate of Incorporation (by
merger or otherwise) so as to adversely affect the preferences, rights or powers
of the Senior Preferred Stock; provided that any such amendment that decreases
the dividend payable on or the Liquidation Value of the Senior Preferred Stock
shall require the affirmative vote of holders of each share of Senior Preferred
Stock at a meeting of holders of Senior Preferred Stock called for such purpose
or written consent of the holder of each share of Senior Preferred Stock; or
(ii) create, authorize or issue any class of stock ranking prior to, or on a
parity with, the Senior Preferred Stock with respect to dividends or upon
liquidation, dissolution, winding up or otherwise, or increase the authorized
number of shares of any such class or series, or reclassify any authorized stock
of the Corporation into any such prior or parity shares or create, authorize or
issue any obligation or security convertible into or evidencing the right to
purchase any such prior or parity shares, except that the Corporation may,
without such approval, create authorize and issue Parity Securities for the
purpose of utilizing the proceeds from the issuance of such Parity Securities
for the redemption or repurchase of all outstanding shares of Senior Preferred
Stock in accordance with the terms hereof or of the Investors' Agreement.
(d) In exercising the voting rights set forth in this paragraph (8),
each share of Senior Preferred Stock shall have one vote per share, except that
when any other series of preferred stock shall have the right to vote with the
Senior Preferred Stock as a single class on any matter, then the Senior
Preferred Stock and such other series shall have with respect to such matters
one vote per $25.00 of Liquidation Value or other liquidation preference. Except
as otherwise required by applicable law or as set forth herein, the shares of
Senior Preferred Stock shall not have any relative, participating, optional or
other special voting rights and powers and the consent of the holders thereof
shall not be required for the taking of any corporate action.
(9) Reports. So long as any of the Senior Preferred Stock is
outstanding, the Corporation will furnish the holders thereof with the quarterly
and annual financial reports that the Corporation is required to file with the
Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 or, in the event the Corporation is not
required to file such reports, reports containing the same information as would
be required in such reports.
(10) General Provisions. (a)The term "Person" as used herein means any
corporation, limited liability company, partnership, trust, organization,
association, other entity or individual.
(b) The term "outstanding", when used with reference to shares of
stock, shall mean issued shares, excluding shares held by the Corporation or a
subsidiary.
(c) The headings of the paragraphs, subparagraphs, clauses and
subclauses used herein are for convenience of reference only and shall not
define, limit or affect any of the provisions hereof.
(d) Each holder of Senior Preferred Stock, by acceptance thereof,
acknowledges and agrees that payments of dividends, interest, premium and
principal on, and exchange, redemption and repurchase of, such securities by the
Corporation are subject to restrictions on the Corporation contained in certain
credit and financing agreements.
IN WITNESS WHEREOF, Insilco Holding Co. has caused this Certificate of
Designations to be signed and attested by the undersigned this 17th day of
August, 1998.
Insilco Holding Co.
By: -------------------------------
Name: Kenneth H. Koch
Title: Vice President and Secretary
ATTEST:
- -----------------------------------
Name: David A. Kauer
Title: Vice President and Treasurer
ANNEX A
SUMMARY OF TERMS
OF INDENTURE FOR
15% SUBORDINATED EXCHANGE DEBENTURES
Parties: Insilco Holding Co. (the "Corporation") and
[ ], as trustee.
Issue: 15% Exchange Debentures (the "Exchange
Debentures") to be issued by the Corporation, at
its option, in exchange for any or all the
outstanding shares of 15% Senior Exchangeable
Preferred Stock due 2010 (the "Senior Preferred
Stock") issued on or about August 17, 1998 to
DLJ Merchant Banking Partners II, L.P. and
certain of its affiliates (the "DLJ Entities").
Maturity: August 1, 2010.
Interest: 15% annual rate, payable semi-annually.
Through the tenth semi-annual interest payment
period, quarterly interest will accrete on a
compound basis (i.e. non-cash pay) and increase
the face amount of the Exchange Debentures,
thereafter interest will be payable in cash.
Ranking: The Exchange Debentures will rank senior to all
other subordinated debt (but junior to the Senior
Discount Debentures due 2008 of the Corporation
and the Corporation's guaranty of Insilco
Corporation's indebtedness under its Senior
Credit Facility), preferred stock and common
equity of the Corporation.
Optional Redemption: The Exchange Debentures will be redeemable at
any time at the option of the Corporation, in
whole or in part, at the same redemption prices
set forth in the designation of the Senior
Preferred Stock set forth in Article 4 of the
Restated Certificate of Incorporation of the
Surviving Corporation.
Change of Control In the event of a Change of Control of the
Repurchase Right: Corporation each holder of the Exchange
Debentures will have the right to require
the Corporation to repurchase all or any
part of such holder's Exchange Debentures
at a purchase price of 101% of the sum of
the accreted value thereof plus accrued and
unpaid cash interest, if any, to the
repurchase date.
Covenants: The Debentures will contain covenants that are
substantially the same as the covenants contained
in the Indenture for the Senior Discount
Debentures due 2008 of the Corporation and will
limit, among other things, the ability of the
Corporation and its subsidiaries (i) to incur
additional indebtedness, (ii) to pay dividends and
make other distributions on its capital stock, (iii)
to repurchase its capital stock or warrants,
options or other rights to acquire shares of its
capital stock or any Indebtedness subordinated to
the Exchange Debentures, (iv) to make certain
other Restricted Payments, (v) to make certain
investments or asset sales, (vi) to engage in
transactions with affiliates, (vii) to create liens,
(viii) to permit "layering" of indebtedness and
(ix) to merge or consolidate or transfer all or
substantially all of its assets.
