EXHIBIT 11
VOTING AGREEMENT
In consideration of Silkworm Acquisition Corporation, a Delaware
corporation ("HOLDCO"), Insilco Corporation, a Delaware corporation (the
"COMPANY"), and INR Holding Co., a Delaware corporation and existing wholly
owned subsidiary of the Company ("EXISTING SUB"), entering into on the date
hereof an Agreement and Plan of Merger (the "MERGER AGREEMENT") which provides,
among other things, that upon the terms and subject to the conditions thereof,
(i) pursuant to the Reorganization Merger (as defined in the Merger Agreement),
the Company will become a wholly-owned subsidiary of Existing Sub and the shares
of common stock in the Company (the "COMPANY COMMON STOCK") will be exchanged
for shares of common stock of Existing Sub, having the same rights, powers,
privileges and preferences as the Company Common Stock and (ii) immediately
following the Reorganization Merger, Holdco will be merged with and into
Existing Sub (the "MERGER") with Existing Sub continuing as the surviving
corporation, and pursuant thereto each outstanding share of the Company Common
Stock will be converted into the right to receive the Merger Consideration (as
defined in the Merger Agreement) in accordance with the terms of the Merger
Agreement, the undersigned holder (the "STOCKHOLDER") of shares of the Company
Common Stock agrees with Holdco as follows:
1. During the period (the "AGREEMENT PERIOD") beginning on the date
hereof and ending on the earliest of (i) the Effective Time (as defined in the
Merger Agreement), (ii) the date that is 90 days after the termination of the
Merger Agreement in accordance with Section 9.01(e), 9.01(f) or 9.01(g) thereof
and payment in full of all amounts (if any) payable to Holdco pursuant to
Section 5.04 of the Merger Agreement and (iii) the date of termination of the
Merger Agreement for any other reason, the Stockholder hereby agrees to vote
1,783,878 shares of Company Common Stock (the "STOCKHOLDER SECURITIES") to
approve and adopt the Merger Agreement and the Merger (provided that the
Stockholder shall not be required to vote in favor of the Merger Agreement or
the Merger if the Merger Agreement has, without the written consent of the
Stockholder, been amended in any manner that is material and adverse to the
Stockholder) and any actions directly and reasonably related thereto at any
meeting or meetings of the stockholders of the Company, and at any adjournment
thereof, at which such Merger Agreement, or such other actions, are submitted
for the consideration and vote of the stockholders of the Company so long as
such meeting is held and completed (including any adjournment thereof) prior to
the termination of the Agreement Period. Notwithstanding anything to the
contrary provided in this Voting Agreement, if at any time (i) there is a tender
or exchange offer (an "OFFER") commenced by any person to purchase Company
Common Stock and (ii) the Merger Agreement has been terminated pursuant to
Section 9.01(e), 9.01(f) or 9.01(g) thereof, then the Stockholder shall have the
right to validly tender any or all of its Stockholder Securities into the Offer
three business days (the "TENDER DAY") prior to any scheduled expiration of such
Offer. Any such tender or sale pursuant thereto shall not be a breach of the
provisions of this Voting Agreement and the Agreement Period shall be deemed to
end upon consummation of such Offer. In addition, nothing in this Voting
Agreement shall preclude the Stockholder from making, during the Agreement
Period, any election with respect to the form of consideration in respect of an
Acquisition Proposal.
At or prior to 10:00 A.M. (New York City Time) on the Tender Day,
Stockholder will deliver to Holdco written notice if it elects to tender into
such Offer. If Stockholder elects to tender into the Offer, Holdco will have the
nonassignable option to purchase all (but not less than all) of the Stockholder
Securities at a price of $44.50 per share in cash by delivery to Stockholder of
a written notice making such election no later than 10:00 A.M. (New York City
Time) on the business day immediately following the Tender Day. In the event
Holdco exercises such option, Stockholder will withdraw any Stockholder
Securities that were tendered in the Offer, and the settlement for the purchase
thereof by Holdco pursuant to this paragraph will take place by 12:00 Noon (New
York City Time) on the second business day immediately following the Tender Day.
This Voting Agreement shall terminate immediately following such purchase, or
upon Holdco's failure to consummate such purchase by such designated time.
2. During the Agreement Period, the Stockholder hereby agrees that it
will not vote any of the Stockholder Securities in favor of the approval of any
other merger, consolidation, sale of assets, reorganization, recapitalization,
liquidation or winding up of the Company or any other extraordinary transaction
involving the Company or any matters related to or in connection therewith, or
any corporate action relating to or the consummation of which would either
frustrate the purposes of, or prevent or delay the consummation of, the
transactions contemplated by the Merger Agreement.
3. During the Agreement Period, the Stockholder will not, directly or
indirectly, (i) take any action to solicit, initiate, encourage or facilitate
any Acquisition Proposal or (ii) engage in negotiations or discussions with, or
furnish or disclose any nonpublic information relating to the Company or any
Subsidiary or afford access to the properties, books or records of the Company
or any Subsidiary to, or otherwise assist, facilitate or encourage, any Third
Party (other than Holdco, its affiliates and their respective directors,
officers, employees, agents or representatives) that the Stockholder believes
may be considering making, or has made, an Acquisition Proposal. The Stockholder
will promptly notify Holdco after receipt of any Acquisition Proposal or any
indication from any Third Party that it is considering making an Acquisition
Proposal and will keep Holdco fully informed of the status and details of any
such Acquisition Proposal, indication or request. Anything herein to the
contrary notwithstanding, this Voting Agreement shall not limit actions taken,
or require actions to be taken, (i) by any party related to the Stockholder who
is, or one or more of whose affiliates, directors, partners, officers or
employees is, a director or officer of the Company that are required or
restricted by such director's fiduciary duties or such officer's employment
duties, or permitted by the Merger Agreement, and that, in each case, are
undertaken solely in such person's capacity as a director or officer of the
Company and, in the case of an officer of the Company, as directed by the Board
of Directors of the Company or (ii) by an affiliate of the Stockholder, in such
affiliate's capacity as investment banker, investment broker or financial
advisor to the Company, to the extent such affiliate performs such actions at
the request of the Board of Directors of the Company in connection with the
exercise by the Board of Directors of its fiduciary obligations under applicable
law consistent with the Company's rights and obligations under the Merger
Agreement.
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4. The Stockholder agrees not to exercise any rights (including, without
limitation, under Section 262 of the General Corporation Law of the State of
Delaware) to demand appraisal of any shares of Company Common Stock owned by the
Stockholder with respect to the Merger.
5. The Stockholder hereby represents and warrants to Holdco that as of
the date hereof:
(a) the Stockholder (i) owns beneficially all of the Stockholder
Securities, (ii) has the full and unrestricted legal power, authority and right
to enter into, execute and deliver this Voting Agreement without the consent or
approval of any other person and (iii) is not party to any voting agreement, and
has not granted any person any proxy (revocable or irrevocable), with respect to
the Stockholder Securities (other than this Voting Agreement);
(b) this Voting Agreement is the valid and binding agreement of the
Stockholder; and
(c) other than as disclosed pursuant to the Merger Agreement, no
investment banker, broker or finder is entitled to a commission or fee from the
Company in respect of this Voting Agreement based upon any arrangement or
agreement made by or on behalf of the Stockholder.
6. If any provision of this Voting Agreement shall be invalid or
unenforceable under applicable law, such provision shall be ineffective to the
extent of such invalidity or unenforceability only, without in any way affecting
the remaining provisions of this Voting Agreement.
7. This Voting Agreement may be executed in two or more counterparts
each of which shall be an original with the same effect as if the signatures
hereto and thereto were upon the same instrument.
8. The parties hereto agree that if for any reason any party hereto
shall have failed to perform its obligations under this Voting Agreement, then
the party seeking to enforce this Voting Agreement against such non-performing
party shall be entitled to specific performance and injunctive and other
equitable relief, and the parties hereto further agree to waive any requirement
for the securing or posting of any bond in connection with the obtaining of any
such injunctive or other equitable relief. This provision is without prejudice
to any other rights or remedies, whether at law or in equity, that any party
hereto may have against any other party hereto for any failure to perform its
obligations under this Voting Agreement.
9. This Voting Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
10. The Stockholder will, upon reasonable request, execute and deliver
any additional documents deemed by Holdco to be necessary or desirable to
complete and effectuate the covenants contained herein.
11. This Voting Agreement shall terminate upon the termination of the
Agreement Period.
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12. The Stockholder agrees that it will not sell, transfer, assign,
encumber or otherwise dispose of any of the Stockholder Securities (whether to
an affiliate or otherwise) until the expiration of the Agreement Period, other
than pursuant to the Reorganization Merger or pursuant to the terms of this
Voting Agreement.
13. Holdco and the Company understand and agree that this Voting
Agreement pertains only to the Stockholder and not to any of its affiliates, if
any, or advisers.
14. (a) Holdco and the Company severally and not jointly represent and
warrant to the Stockholder that (i) there is no agreement, understanding or
commitment, written or oral, to pay any consideration directly or indirectly in
connection with the Merger or otherwise to or for the benefit of any holder of
Company Common Stock or options thereon other than as set forth in the Merger
Agreement (except, in the case of directors, employees, agents, customers,
suppliers or contractors of the Company who are also holders, such consideration
as is payable by the Company in the ordinary course of business and except for
amounts payable to officers, directors or employees in connection with or
pursuant to any options, or option, stock purchase, stock ownership or other
employee benefit plans), (ii) this Voting Agreement is the valid and binding
agreement of Holdco and the Company, as the case may be, and (iii) Holdco and
the Company, as the case may be, have not entered into any voting agreements
with any other existing shareholders of the Company prior to or concurrently
with this Voting Agreement.
(b) If Holdco or the Company enters into any agreement with any other
stockholder having a purpose or effect substantially similar to that of this
Voting Agreement on financial or other terms (with respect to such other
stockholder) more favorable than the terms of this Voting Agreement, the
Stockholder will have the right to elect any of the benefits thereof, as they
may be amended or waived from time to time.
15. 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 Holdco, to:
Xxxxxxxx Xxxx
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 000-000-0000
if to the Company, to:
Insilco Corporation
000 Xxxxx Xxxxx Xxxxx
0xx Xxxxx
Xxxxxx, Xxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
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if to the Stockholder, to:
Water Street Corporate Recovery Fund I, L.P.
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: 000-000-0000
or such other address or telecopy number as such party may hereafter specify for
the purpose by notice to the other parties hereto.
16. Capitalized terms not defined herein shall have the meaning ascribed
to them in the Merger Agreement. For purposes of this Voting Agreement,
following consummation of the Reorganization Merger, "COMPANY" means Existing
Sub and "COMPANY COMMON STOCK" means the shares of common stock of Existing Sub
resulting from the Reorganization Merger.
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IN WITNESS WHEREOF, the parties hereto have executed this Voting Agreement
as of this 24th day of March, 1998.
SILKWORM ACQUISITION
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
____________________________
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
INSILCO CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
WATER STREET CORPORATE
RECOVERY FUND I, L.P.
By: Xxxxxxx, Xxxxx & Co.,
its General Partner
By: /s/ Xxxxxxx X. X'Xxxxx
____________________________
Name: Xxxxxxx X. X'Xxxxx
Title: Managing Director
