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Exhibit 10(g)
VALUE APPRECIATION AGREEMENT
THIS VALUE APPRECIATION AGREEMENT (this "Agreement") is entered into
as of the ____ day of December, 1996, by INSILCO CORPORATION, a Delaware
corporation (the "Company"), and XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXXX, XXX X.
XXXXXX, XXXXX X. XXXXX, XXXXXXX X. XXXX, XXXXXX X. XXXXXXXX (collectively, the
"Executives" and, individually, an "Executive").
WHEREAS, each of the Executives is currently an employee of the
Company; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it would be in the best interests of the Company and its
shareholders to entertain and consider a proposal or proposals regarding a
possible "Sale" (as hereinafter defined) of the Company; and
WHEREAS, the Board has determined that it would be in the best
interests of the Company to maintain continuity in the management of the
Company's business in the event of any actual or contemplated Sale of the
Company; and
WHEREAS, the Company desires to provide the Executives, on the terms
and subject to the conditions set forth in this Agreement, with an additional
incentive to remain in the Company's employ, to assist the Company to negotiate
and consummate the Sale of the Company on terms satisfactory to the Company,
and to use their best efforts to maintain and enhance the value, business,
prospects, and business relationships of the Company;
NOW, THEREFORE,for and in consideration of the premises and the mutual
covenants contained herein, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
(a) An "Affiliate" of any specified Person means any
Subsidiary of such Person and any other Person controlled by, controlling, or
under common control with such specified Person. For purposes of this
definition, "control," when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract, or
otherwise.
(b) The "Base Salary" of an Executive means such
Executive's annual base salary payable in accordance with the regular payroll
practices of the Company.
(c) "Benefits" means any pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock ownership,
severance pay, vacation, bonus or other incentive plan, all medical, vision,
dental, or other health plans, all life insurance plans, and all other employee
benefit plans or fringe benefit plans, including "employee benefit plans," as
that term is defined in Section 3(3) of ERISA, and any and all other written or
unwritten employee plans, policies,
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practices, programs, arrangements, or agreements, adopted, maintained, or
sponsored in whole or in part by, or contributed to by the Company or any of
its Subsidiaries for the benefit of the directors, officers, employees, agents,
or retirees of the Company or any of its Subsidiaries, or any of their
respective spouses or dependents, or any other beneficiaries.
(d) "Buyer" means the Person or Persons who purchase or
otherwise acquire the Company's stock or assets in a Sale of the Company.
(e) "Cause" means: (i) the conviction of the Executive
of any felony; (ii) any act of fraud, embezzlement, or willful dishonesty by
the Executive in relation to the business or affairs of the Company; (iii) any
other illegal conduct on the part of the Executive that is detrimental to the
best interests of the Company; (iv) the deliberate and gross misconduct by the
Executive in the performance of, or the deliberate and gross neglect by the
Executive of, his duties and responsibilities as an officer or employee of the
Company; or (v) a material breach by the Executive of his obligations under
this Agreement or under any other agreement between the Executive and the
Company relating to his Employment, including, but not limited to, any
employment, confidentiality, or noncompetition agreement; provided, however,
that no action or failure to act by the Executive will constitute "Cause"
hereunder if (A) the Executive believed in good faith that such action or
failure to act was in the best interest of the Company or its shareholders, or
(B) such action or failure to act occurred at any time after the occurrence of
any event that constitutes Good Reason.
(f) A "Change in Control" means any of the following:
(i) the acquisition, directly or indirectly, by
any Person or group of Persons acting in concert within any
twelve-month period of securities of the Company representing an
aggregate of 25 percent or more of the combined voting power of the
Company's then outstanding securities, provided that, upon the
consummation of such acquisition, such Person or group of Persons
holds a greater percentage of the combined voting power of the
Company's then outstanding securities than any other Person; or
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof before
the end of such period, unless the election of each director who was
not a director at the beginning of such period was approved in advance
by directors representing at least two-thirds of the directors then in
office who were directors at the beginning of such period; or
(iii) consummation of (A) a merger, consolidation,
or other business combination of the Company with any other Person,
other than a merger, consolidation, or business combination which
would result in the common stock of the Company outstanding
immediately prior thereto continuing to represent, or being converted
into common stock
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of the surviving entity or a parent or Affiliate thereof representing,
at least 60 percent of the common stock of the Company or such
surviving entity or parent or Affiliate thereof outstanding
immediately after such merger, consolidation, or business combination,
or (B) a plan of complete liquidation of the Company, or (C) an
agreement for the sale or disposition by the Company of a majority (in
value) of the Company's assets; or
(iv) the occurrence of any other event or
circumstance which is not covered by (i) through (iii) above which the
Board determines affects control of the Company and, in order to
implement the purposes of this Agreement as set forth above, adopts a
resolution that such event or circumstance constitutes a Change in
Control for the purposes of this Agreement.
provided, however, that for purposes of determining whether a Change in Control
has occurred on any given date, a partner in Water Street Corporate Recovery
Fund I, Ltd. will be deemed to own that number of voting shares of the Company
determined by multiplying such partner's percentage partnership interest in
such partnership as of such date by the number of voting shares of the Company
owned by such partnership as of such date.
(g) The "Closing Date" means the date on which a Sale of
the Company is consummated or, if a Sale consists of a series of transactions
or events, the date on which the transaction or event that causes such series
of transactions or events to constitute a Sale is consummated or occurs,
provided, however, that, for the purposes of this Agreement, the date on which
an initial installment of the Purchase Price in connection with a Sale or a
series of transactions that constitutes a Sale is paid shall be deemed to be
the Closing Date.
(h) The "Commissions" means the commissions payable to
the Executives pursuant to Sections 4 and 5 hereof.
(i) "Employment" of the Executive means the regular
salaried employment of the Executive with the Company and does not include the
engagement of the Executive as an independent consultant or other independent
contractor.
(j) "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
(k) "Good Reason" means the occurrence of any of the
following events at any time prior to the Closing Date: (i) a material
reduction in the Executive's Base Salary; (ii) the elimination of or a material
reduction in any Benefits provided to the Executive, unless a substitute
Benefit that is economically equivalent to the eliminated or reduced Benefit is
provided to the Executive; (ii) a material change in the Executive's position
(including status, office, title, reporting relationships, or working
conditions), responsibilities, authority, or duties; (iii) the relocation of
the Executive's office location as assigned to the Executive by the Company to
a location more than 50
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miles from the Executive's office location as of the date of this Agreement; or
(iv) the failure of any Successor to assume, either by an enforceable agreement
or by operation of law, all of the Company's liabilities and obligations to the
Executive under this Agreement.
(l) The "Per Share Purchase Price" means the Purchase
Price divided by the number of shares of the capital stock of the Company
outstanding on the Closing Date, on a fully diluted basis, taking into account
all shares subject to stock options outstanding as of such date.
(m) The "Per Share Value" means the average of the
closing sale prices for a share of the capital stock of the Company as reported
on the Nasdaq National Market for the 25 trading days ending on the day that is
two trading days prior to a particular Termination Date.
(n) "Person" means any individual, corporation,
partnership, limited liability company, joint venture, association, joint-stock
company, group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended), trust, unincorporated
organization or government or any agency or political subdivision thereof.
(o) The "Pro Rata Share (Sale)" of an Executive means the
ratio that such Executive's Base Salary as of (i) the Closing Date, if the
Closing Date falls on December 31 of any year, or (ii) December 31 of the year
prior to the year in which the Closing Date occurs, if the Closing Date falls
on any day other than December 31, bears to the total amount of the Base
Salaries of all of the Executives who are employed by the Company or a
Successor as of such applicable date.
(p) The "Pro Rata Share (Termination)" of an Executive
means the ratio that such Executive's Base Salary as of (i) the Termination
Date, if the Termination Date falls on December 31 of any year, or (ii)
December 31 of the year prior to the year in which the Termination Date occurs,
if the Termination Date falls on any day other than December 31, bears to the
total amount of the Base Salaries of all of the Executives as of such date.
(q) The "Purchase Price" for the Company means the total
purchase price or other consideration payable by the Buyer to the Company under
the terms of a Sale of the Company, whether payable in cash or any other
property, subject to any adjustments that may be made to the amount of such
total purchase price or other consideration, either before or after the Closing
Date, under the terms of the Sale (but no such adjustment shall be made for any
fees, expenses, or commissions payable by the Company or any other party in
connection with the consummation of the Sale); provided, however, that, for
purposes of this definition:
(i) if any part or all of the Purchase Price is
payable in property other than cash, the amount of the Purchase Price
shall be equal to the sum of the amount of cash payable in the Sale
plus the fair market value of the non-cash property to be conveyed,
transferred, or assigned to the Company, an Affiliate or Affiliates of
the Company, or the shareholders of the Company in the Sale;
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(ii) if any part or all of the Purchase Price is
payable in the form of securities, the value of such securities will
be determined by the average of the last sales prices for such
securities on the five trading days ending five days prior to the
consummation of the Sale, and if such securities do not have an
existing public trading market, the value of the securities shall be
the mutually agreed upon fair market value thereof on the day prior to
the consummation of the Sale;
(iii) in the case of a sale, transfer, or
disposition by the Company of less than all of the assets of the
Company, the Purchase Price shall include the fair market value of any
current assets of the Company not sold by the Company and the
principal amount of all indebtedness for borrowed money assumed by the
buyer or buyers in the Sale;
(iv) in the case of the sale, exchange, or
purchase of fewer than all of the outstanding shares of the capital
stock of the Company, the Purchase Price shall be the total
consideration that would have been paid if all such stock had been
purchased, on a fully diluted basis, taking into account all shares
subject to outstanding stock options, on the same terms, plus the
principal amount of all indebtedness for borrowed money as set forth
on the most recent consolidated balance sheet of the Company prior to
the consummation of the Sale;
(v) the Purchase Price shall include any amounts
paid into escrow and the amount of any and all deferred or contingent
payments that are or may become payable by the Buyer under the terms
of the Sale upon the expiration of time, under certain circumstances,
or on the occurrence or nonoccurrence of certain events, without any
reduction or discount whatsoever; and
(vi) the Purchase Price shall include, if
applicable, the aggregate amount of any and all dividends or other
distributions declared by the Company with respect to its stock after
the date hereof and prior to the Closing Date.
(r) A "Sale" of the Company means a transaction or event,
or a series of transactions or events, that results in (i) a sale, transfer, or
other disposition of a majority of the outstanding shares of the capital stock
of the Company to any Person or group of Persons, (ii) a sale, transfer, or
other disposition of a majority (in value) of the assets of the Company to such
a Person or group of Persons, or (iii) a merger, consolidation, or other
business combination of the Company with any such Person, other than a merger,
consolidation, or business combination which would result in the common stock
of the Company outstanding immediately prior to the consummation of such
merger, consolidation, or business combination continuing to represent (either
by remaining outstanding or by being converted into common stock of the
surviving entity or a parent or Affiliate thereof representing) at least 60
percent of the common stock of the Company or such surviving
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entity or parent or Affiliate thereof outstanding immediately after the
consummation thereof. For purposes of determining whether a Sale has occurred
on any given date, a partner in Water Street Corporate Recovery Fund I, Ltd.
will be deemed to own that number of voting shares of the Company determined by
multiplying such partner's percentage partnership interest in such partnership
as of such date by the number of voting shares of the Company owned by such
partnership as of such date.
(s) A "Subsidiary" of a Person means (i) a corporation,
50 percent or more of the equity ownership and outstanding voting stock of
which is at the time owned, directly or indirectly, by such Person or by one or
more other Subsidiaries of such Person or by such Person and one or more other
Subsidiaries of such Person, or (ii) if such Person is not a corporation, an
unincorporated operating division of such Person.
(t) A "Successor" means any successor in interest to the
Company by virtue of a Change in Control, a Sale, or any other merger,
consolidation, or other business combination involving the Company.
(u) The "Termination Date" means the date of a termination
of an Executive's Employment.
2. TERM. The term of this Agreement shall be two years,
commencing on the date hereof.
3. DUTIES OF THE EXECUTIVES. During the term of this Agreement
and as long as any of the Executives remains employed by the Company, each such
Executive so employed shall (i) use his best efforts to assist the Company to
negotiate and consummate the Sale of the Company on terms satisfactory to the
Company, (ii) use his best efforts to maintain and enhance the value, business,
prospects, and business relationships of the Company, and (iii) perform any and
all specific duties consistent with his position with the Company as may be
reasonably assigned to the Executive by the Board or the President of the
Company in relation to the Sale of the Company or in relation to the ongoing
business and operation of the Company.
4. COMMISSIONS UPON A TERMINATION OF EMPLOYMENT.
(a) If an Executive's Employment is terminated prior to
the Closing Date either (i) by the Company for Cause, or (ii) by the Executive
without Good Reason at any time before the occurrence of a Change in Control,
then no Commissions shall be payable to such Executive under any provisions of
this Agreement.
(b) If (i) an Executive's Employment is terminated at any
time during the term of this Agreement and prior to the Closing Date either (A)
by the Company other than for Cause or by reason of the Executive's death or
Disability, (B) by the Executive with Good Reason, or (C) by the Executive,
whether with or without Good Reason, at any time after the occurrence of a
Change in Control, and (ii) such Executive has performed the obligations to be
performed by him under Section 3 hereof through the Termination Date, then
(iii) if the Per Share Value determined as of the
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Termination Date is less than $36.00, no Commission shall be payable to such
Executive hereunder, except to the extent that a Commission may become payable
under subsection 4(d) below on a Sale of the Company, and (iv) if the Per Share
Value determined as of the Termination Date is greater than $36.00, the Company
shall pay to such Executive a Commission in an amount equal to the sum of the
following amounts, subject to adjustment in accordance with subsection 4(d)
below:
(A) one percent of the amount determined by
multiplying the amount by which the Per Share Value exceeds $36.00,
times the total number of shares of the capital stock of the Company
outstanding on the Termination Date, on a fully diluted basis, taking
into account all shares subject to stock options outstanding as of
such date, times such Executive's Pro Rata Share (Termination); plus
(B) an additional one percent of the amount
determined by multiplying the amount, if any, by which the Per Share
Value exceeds $40.00, times the total number of shares of the capital
stock of the Company outstanding on the Termination Date, on a fully
diluted basis, taking into account all shares subject to stock options
outstanding as of such date, times such Executive's Pro Rata Share
(Termination).
(c) Any Commission payable under subsection 4(b) above
shall be payable in full, in cash, on the Termination Date.
(d) If an Executive's Employment is terminated prior to
the Closing Date under the circumstances and subject to the conditions
described in subsection 4(b) above, and regardless of whether such Executive is
entitled to a Commission under said subsection 4(b), and if the Closing Date
occurs within one year after the Termination Date, then such Executive shall be
entitled to receive a portion of the amount, if any, by which the Commission
which he would otherwise have been entitled to receive under Section 5 below
(had such Executive been employed by the Company on the Closing Date) exceeds
the Commission which he was entitled to receive under subsection 4(b) above,
such portion to be 100 percent if the Closing Date occurs on or before the date
that is three months after the Termination Date and reduced by ten percent per
month thereafter.
(e) Any Commission payable under subsection 4(d) above
shall be payable in full, in cash, within ten days after the Closing Date.
5. COMMISSIONS UPON A SALE OF THE COMPANY.
(a) Upon a Sale of the Company, if the Per Share Purchase
Price is less than or equal to $36.00, no Commissions shall be payable to any
of the Executives under the provisions of this Section 5. Upon a Sale of the
Company during the term of this Agreement, if the Per Share Purchase Price is
greater than $36.00, then the Company shall pay to each of the Executives who
are employed by the Company or a Successor as of the Closing Date a Commission
in an amount equal to the sum of the following amounts:
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(i) one percent of the amount determined by
multiplying the amount by which the Per Share Purchase Price exceeds
$36.00, times the total number of shares of the capital stock of the
Company outstanding on the Closing Date, on a fully diluted basis,
taking into account all shares subject to stock options outstanding as
of such date, times such Executive's Pro Rata Share (Sale); plus
(ii) an additional one percent of the amount
determined by multiplying the amount, if any, by which the Per Share
Purchase Price exceeds $40.00, times the total number of shares of the
capital stock of the Company outstanding on the Closing Date, on a
fully diluted basis, taking into account all shares subject to stock
options outstanding as of such date, times such Executive's Pro Rata
Share (Sale);
provided, however, that the aggregate amount of the Commissions payable under
this Section 5 shall be reduced by the lesser of (A) the amount, if any, of the
Commissions paid to any of the Executives under Section 4 above prior to the
Closing Date, including Commissions payable under Section 4(d) above, or (B)
the amount of Commissions that would have been payable under the operation of
this Section 5 to any Executives who have received Commissions under Section 4
above.
(b) The Commissions payable under this Section 5 shall be
due and payable in full, in cash, within ten days after the Closing Date, and
shall be determined based on the total amount of the Purchase Price, including
any and all amounts that may be paid into escrow, and the total, gross amount
of any and all deferred or contingent payments, without any discount or other
reduction whatsoever.
6. ANTIDILUTION. In the event of any change in the number of
outstanding shares of capital stock of the Company at any time after the date
of this Agreement by reason of a stock dividend, stock split, recapitalization,
combination, share exchange, or similar transaction, the amounts of $36.00 and
$40.00 set forth in Sections 4 and 5 hereof shall be adjusted appropriately to
take into account the effects of such change.
7. TAX WITHHOLDING. The Company may withhold or cause to be
withheld from any benefits payable under this Agreement all federal, state,
city, or other taxes that are required to be withheld pursuant to any law or
governmental regulation or other taxes that are required to be withheld
pursuant to any law or governmental regulation or ruling.
8. ASSIGNABILITY; BINDING EFFECT.
(a) This Agreement is personal to each of the Executives
and, without the prior written consent of the Company, shall not be assignable
by any Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be binding on
and enforceable by each Executive's legal representatives and permitted
successors and assigns.
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(b) The rights of the Company under this Agreement may be
assigned or transferred by the Company, provided that the assignee or
transferee assumes all the liabilities, obligations and duties of the assignor,
as contained in this Agreement, either contractually or as a matter of law.
This Agreement shall inure to the benefit of and be binding on and enforceable
by the successors and assigns of the Company.
9. NOTICES. Any and all notices and other communications
hereunder shall be in writing and shall be given, if by the Executives, or any
of them, by facsimile transmission to the facsimile number for the Company set
forth below and if by any party, by personal delivery or by certified mail,
return receipt requested, postage prepaid, addressed as follows:
(a) If to the Company, to:
Insilco Corporation
000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxx, Xxxx 00000
Facsimile Number: (000) 000-0000
(b) If to the Executives, or to any of them, to the
addresses set forth on Schedule A attached hereto and incorporated by reference
herein.
10. AMENDMENTS. This Agreement may not be modified or amended
except by an instrument in writing signed by each of the parties hereto.
11. SEVERABILITY. If any provision of this Agreement shall be
held invalid in whole or in part, such invalidity shall in no way affect the
rest of such provision not held so invalid, and the rest of such provision,
together with all provisions of this Agreement, shall to the full extent
consistent with law continue in full force and effect.
12. GOVERNING LAW. This Agreement has been executed and
delivered in the State of Ohio and its validity, interpretation, performance
and enforcement shall be governed by the laws of said state without regard to
principles of conflicts of laws.
13. ENTIRE AGREEMENT. This Agreement represents the final
agreement between the parties relative to the subject matter hereof and may not
be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten agreements between the
parties relative to the subject matter of this Agreement.
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THIS SPACE INTENTIONALLY LEFT BLANK
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14. TITLE; REFERENCES. The titles of the Sections and
subsections of this Agreement are for reference only and are not to be
considered in construing this Agreement. References herein to Sections or
subsections are to Sections or subsections of this Agreement unless otherwise
specified.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INSILCO CORPORATION
By: ______________________________
Xxxxxx X. Xxxxxxx, President
_______________________________
Xxxxx X. Xxxxxxxxx
_______________________________
Xxxxxx X. Xxxxxxx
_______________________________
Xxx X. Xxxxxx
_______________________________
Xxxxx X. Xxxxx
_______________________________
Xxxxxxx X. Xxxx
_______________________________
Xxxxxx X. Xxxxxxxx
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