AMENDMENT NO. 1 TO RIGHTS AGREEMENT
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THIS AMENDMENT NO. 1 (the "Amendment"), dated as of the 27th day of
October, 2001, to the Rights Agreement dated as of the 26th day of June, 1996
(the "Agreement"), between Envirodyne Industries, Inc., a Delaware
corporation (now known as Viskase Companies, Inc. and hereinafter referred to
as the "Company"), and Xxxxxx Trust and Savings Bank, an Illinois banking
corporation (the "Rights Agent"), is entered into between the Company and the
Rights Agent, at the direction of the Company.
WHEREAS, the Company desires to amend the Agreement on the terms set
forth in this Amendment;
WHEREAS, on October 27, 2001, the Board of Directors of the Company
adopted this Amendment;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
of the parties contained herein, the parties amend the Agreement as follows:
1. Section 1(c)(ii) of the Agreement is hereby amended and restated
to read in its entirety as follows:
"which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or
dispose of or has 'beneficial ownership' of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under
the Exchange Act), including pursuant to any agreement,
arrangement or understanding, whether or not in writing;
provided, however, that a Person shall not be deemed the
'Beneficial Owner' of, or to 'beneficially own,' any security
under this subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding: (A) arises solely from a
revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under
the Exchange Act and with respect to which such Person has filed
with the Securities and Exchange Commission and circulated to all
of the Company's stockholders the information in or contemplated
or required by Schedule 14A under the General Rules and
Regulations under the Exchange Act, and (B) is not also then
reportable by such Person on Schedule 13D under the Exchange Act
(or any comparable or successor report); or"
2. Section 24(a) of the Agreement is hereby amended and restated to
read in its entirety as follows:
"From the date hereof through December 31, 2001, at such time as
any Person becomes an Acquiring Person, all then outstanding
Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) shall be
automatically exchanged, without any further action on the part
of the Company, the Rights Agent or any holder of the Rights, for
shares of Common Stock at an exchange ratio of one share of
Common Stock per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring
after the date hereof (such exchange ratio being hereinafter
referred to as the "Exchange Ratio"). From and after January 1,
2002, the Board of Directors of the Company may, at its option,
at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for shares of
Common Stock at the Exchange Ratio. In the case of exchanges
occurring from and after January 1, 2001, notwithstanding the
immediately preceding sentence, the Board of Directors shall not
be empowered to effect such exchange at any time after any Person
(other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any such Subsidiary, or
any entity holding Common Stock for or pursuant to the terms of
any such plan), together with all Affiliates and Associates of
such Person, becomes the Beneficial Owner of fifty percent (50%)
or more of the Common Stock then outstanding."
3. Section 24(b) of the Agreement is hereby amended and restated to
read in its entirety as follows:
"Immediately (i) upon the exchange of the Rights pursuant to
subsection (a) of this Section 24 occurring from the date hereof
through December 31, 2001 and (ii) upon the action of the Board
of Directors of the Company ordering the exchange of any Rights
pursuant to subsection (a) of this Section 24 occurring from and
after January 1, 2002, and in either case without any further
action and without any notice, the right to exercise such Rights
shall terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common Stock
equal to the number of such Rights held by such holder multiplied
by the Exchange Ratio, and to exercise such rights as a
stockholder of the Company in respect of the shares of Common
Stock issued in such exchange. The shares of Common Stock issued
in such exchange shall for all purposes be deemed to be issued
and outstanding at such time as any Person becomes an Acquiring
Person, in the case of exchanges specified in clause (i), or the
date of the Board of Directors action, in the case of exchanges
specified in clause (ii)."
4. Section 26 of the Agreement is hereby amended and restated to
read in its entirety as follows:
"Notices or demands authorized by this Agreement to be given or
made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or
made if sent by registered or certified mail, postage prepaid, at
the expense of the Company with respect to the Rights Agent,
addressed (until another address is filed in writing with the
Rights Agent) as follows:
Viskase Companies, Inc.
000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Attn: President
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by registered
or certified mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
Xxxxxx Trust and Savings Bank
000 X. Xxxxxx, 00X
Xxxxxxx, XX 00000
Attn: Shareholder Services
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to the
holder of certificates representing shares of Common Stock) shall
be sufficiently given or made if sent by registered or certified
mail, postage prepaid, at the expense of the Company, addressed
to such holder at the address of such holder as shown on the
registry books of the Company."
5. This Amendment shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware, without giving effect
to the conflict of law principles thereof.
6. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
7. Except as expressly modified by this Amendment, all other terms,
conditions and provisions of the Agreement remain in full force and effect.
8. This Amendment shall be effective as of the time of its approval
by the Company's board of directors, notwithstanding the later approval or
execution hereof by the Rights Agent.
IN WITNESS WHEREOF, the parties have caused this Amendment to be signed
as of the first date written above.
VISKASE COMPANIES, INC.
By:
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Name:
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Title:
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XXXXXX TRUST and SAVINGS BANK,as
Rights Agend
By:
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Name:
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Title:
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