EXHIBIT 4.3
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 that
such rights, options or warrants are not so issued or expire
unexercised, or 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.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx.
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 HOLDING CO.
By __________________________
Name:
Title:
Acknowledged and Agreed:
[HOLDER]
By ___________________________
Title:
