EXHIBIT 4.6
EXECUTION COPY
VISKASE COMPANIES, INC.
REGISTRATION RIGHTS AGREEMENT
Dated as of April 15, 2003
TABLE OF CONTENTS
THIS TABLE OF CONTENTS IS NOT PART OF THE AGREEMENT TO WHICH IT IS ATTACHED BUT
IS INSERTED FOR CONVENIENCE ONLY.
Page
No.
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1. Requested Registrations...................................................................... 1
(a) Registration Requests.................................................................... 1
(b) Limitations on Requested Registrations................................................... 2
(c) Registration Statement Form.............................................................. 2
(d) Registration Expenses.................................................................... 3
(e) Priority in Cutback Registrations........................................................ 3
2. Piggyback Registrations...................................................................... 3
(a) Right to Include Registrable Securities.................................................. 3
(b) Registration Expenses.................................................................... 3
(c) Priority in Cutback Registrations........................................................ 4
3. Registration Procedures...................................................................... 4
4. Underwritten Offerings....................................................................... 7
(a) Underwritten Requested Offerings......................................................... 7
(b) Underwritten Piggyback Offerings......................................................... 8
5. Holdback Agreements.......................................................................... 8
(a) By the Holders of Registrable Securities................................................. 8
(b) By the Company, Affiliates and Other Securityholders..................................... 9
6. Indemnification.............................................................................. 10
(a) Indemnification by the Company........................................................... 10
(b) Indemnification by the Sellers........................................................... 11
(c) Notices of Claims, etc................................................................... 11
(d) Contribution............................................................................. 12
(e) Other Indemnification.................................................................... 13
(f) Indemnification Payments................................................................. 13
7. Covenants Relating to Rule 144............................................................... 13
8. Other Registration Rights.................................................................... 13
9. Definitions.................................................................................. 14
10. Miscellaneous................................................................................ 17
(a) Notices.................................................................................. 17
(b) Entire Agreement......................................................................... 18
(c) Amendment................................................................................ 18
(d) Waiver................................................................................... 18
(e) Consents and Waivers by Holders of Registrable Securities................................ 18
(f) No Third Party Beneficiary............................................................... 19
(g) Assignment; Successors and Assigns....................................................... 19
(h) Headings................................................................................. 19
(i) Invalid Provisions........................................................................... 19
(j) Remedies..................................................................................... 19
i
(k) Governing Law............................................................................ 19
(l) Counterparts................................................................................. 20
(m) Restrictions on Transfer................................................................. 20
ii
VISKASE COMPANIES, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of April 15, 2003 is
made and entered into by and among HIGH RIVER LIMITED PARTNERSHIP, a Delaware
limited partnership, DEBT STRATEGIES FUND, INC., a Maryland corporation,
NORTHEAST INVESTORS TRUST, a Massachusetts business trust (each an "Investor"
and collectively the "Investors"), and VISKASE COMPANIES, INC., a Delaware
corporation (the "Company"). Capitalized terms not otherwise defined herein have
the meanings given such term in the Restructuring Agreement (defined below).
WHEREAS, the Investors and the Company have entered into that
certain Restructuring Agreement, dated as of July 15, 2002, by and among the
Investors and the Company (the "Restructuring Agreement") which Restructuring
Agreement contemplated that the parties hereto enter into this Agreement;
WHEREAS, pursuant to the Plan of Reorganization (each as defined in
the Restructuring Agreement), the Investors are entitled to receive Shares; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Requested Registrations.
(a) Registration Requests. At any time after the second anniversary
of the Effective Date, upon the written request of one or more Initiating
Holders requesting that the Company effect the registration under the Securities
Act of all or part of such Initiating Holders' Registrable Securities and
specifying the number of Registrable Securities to be registered and the
intended method of disposition thereof, the Company will promptly, and in no
event more than ten Business Days after receipt of such request, give written
notice (a "Notice of Requested Registration" of such request to all other
holders of Registrable Securities, and thereupon will use reasonable efforts to
effect the registration under the Securities Act of
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holder or Holders, and
(ii) all other Registrable Securities the holders of which
have made written requests to the Company for registration thereof
within 15 days after the giving of the Notice of Requested
Registration,
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof) of the Registrable Securities so to be registered;
provided, however that the Company shall not be obligated to register the
Registrable Securities pursuant to this Section 1 prior to the third anniversary
of the Effective Date if the Initiating Holder or Holders has failed to comply
with the restrictions on transfer set forth in Section 5.03(b) of the
Restructuring Agreement (as amended by Section 10(m) hereof). If requested by
the holders of a majority of the Registrable
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Securities requested to be included in any Requested Registration, the method of
disposition of all Registrable Securities and any other securities included in
such registration shall be an underwritten offering effected in accordance with
Section 4(a); provided, however, only if at the time of such Requested
Registration, the securities to be registered are listed for trading on any
national securities exchange or traded on the Nasdaq National Market System;
provided further that no Requesting Holder may require the Company to cause any
securities of the Company to be so listed or traded. Notwithstanding the
foregoing, upon written notice (executed by the chief executive officer of the
Company) to all holders of Registrable Securities, the Company may postpone
taking action with respect to a Requested Registration for a reasonable period
of time after receipt of the original request (not exceeding 120 days) if, in
the good faith opinion of the Company's Board of Directors, effecting the
registration would adversely affect a material financing, acquisition,
disposition of assets or stock, merger or other comparable transaction or would
require the Company to make public disclosure of information the public
disclosure of which would have a material adverse effect upon the Company;
provided that the Company shall not delay such action pursuant to this sentence
more than once in any 12-month period. Subject to paragraph (e) the Company may
include in such registration other securities for sale for its own account or
for the account of any other Person. If any securityholders of the Company
(other than the holders of Registrable Securities in such capacity) register
securities of the Company in a Requested Registration in accordance with this
Section 1, such holders shall pay the fees and expenses of their counsel and
their pro rata share, on the basis of the respective amounts of the securities
included in such registration on behalf of each such holder, of the Registration
Expenses.
(b) Limitations on Requested Registrations. Notwithstanding anything
herein to the contrary, the Company shall not be required to honor a request for
a Requested Registration if:
(i) in the case of a Long-Form Registration, the Company has
previously effected three Effective Long-Form Registrations;
provided, that no holder of Registrable Securities which was, or
whose Affiliate was, an Initiating Holder for a previous Effective
Long-Form Registration may deliver a Notice of Requested
Registration for a further Long-Form Registration; provided,
however, that there shall be no limit on the number of registrations
effected as Short-Form Registrations, subject to the other
provisions of this Section 1(b);
(ii) the Registrable Securities requested by Initiating
Holders to be so registered does not constitute at least 25% of the
total Registrable Securities then outstanding; or
(iii) such request is received by the Company less than 180
days following the effective xxxx of any previous registration
statement filed in connection with a Requested Registration or a
Piggyback Registration unless the holder making the request had
requested inclusion of Registrable Securities in such Registration
but was unable to participate fully as a result of Sections 1(e) or
2(c).
(c) Registration Statement Form. Requested Registrations shall be on
such appropriate registration form promulgated by the Commission as shall be
selected by the Company, and shall be reasonably acceptable to the holders of a
majority of the Registrable
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Securities to which such registration relates, and shall permit the disposition
of such Registrable Securities in accordance with the intended method or methods
specified in their request for such registration.
(d) Registration Expenses. The Company will pay all Registration
Expenses incurred in connection with any Requested Registration.
(e) Priority in Cutback Registrations. If a Requested Registration
becomes a Cutback Registration, the Company will include in any such
registration to the extent of the number which the Managing Underwriter advises
the Company can be sold in such offering (i) first, Registrable Securities
requested to be included in such registration by the Requesting Holders, pro
rata on the basis of the number of Registrable Securities requested to be
included by such holders and (ii) second other securities of the Company
proposed to be included in such registration, allocated in accordance with the
priorities then existing among the Company and the holders of such other
securities; and any securities so excluded shall be withdrawn from and shall not
be included in such Requested Registration.
2. Piggyback Registrations.
(a) Right to Include Registrable Securities. Notwithstanding any
limitation contained in Section 1, if the Company at any time proposes after the
date hereof to effect a Piggyback Registration, it will each such time give
written notice (a "Notice of Piggyback Registration"), at least 15 days prior to
the anticipated filing date, to all holders of Registrable Securities of its
intention to do so and of such holders' rights under this Section 2, which
Notice of Piggyback Registration shall include a description of the intended
method of disposition of such securities. Upon the written request of any such
holder made within 15 days after receipt of a Notice of Piggyback Registration
(which request shall specify the Registrable Securities intended to be disposed
of by such holder), the Company will, subject to the other provisions of this
Agreement, include in the registration statement relating to such Piggyback
Registration all Registrable Securities which the Company has been so requested
to register, all to the extent requisite to permit the disposition of such
Registrable Securities in accordance with the intended method of disposition set
forth in the Notice of Piggyback Registration. Notwithstanding the foregoing,
if, at any time after giving a Notice of Piggyback Registration 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 or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to each holder of Registrable Securities
and, thereupon, (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith) without prejudice, however, to the rights of
any Requesting Holder entitled to do so to request that such registration be
effected as a Requested Registration under Section 1, and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities. No registration effected under this Section 2 shall relieve
the Company of its obligations to effect a Requested Registration under Section
1.
(b) Registration Expenses. The Company will pay all Registration
Expenses incurred in connection with any Piggyback Registration.
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(c) Priority in Cutback Registrations. If a Piggyback Registration
becomes a Cutback Registration, the Company will include in such registration to
the extent of the amount of the securities which the Managing Underwriter
advises the Company can be sold in such offering:
(i) if such registration as initially proposed by the Company
was solely a primary registration of its securities, (x) first, the
securities proposed by the Company to be sold for its own account,
(y) second, (1) any Registrable Securities requested to be included
in such registration by Requesting Holders and (2) any other
securities of the Company proposed to be included in such
registration, allocated among the holders thereof in accordance with
the priorities then existing among the Holders and such holders; and
(ii) if such registration as initially proposed by the Company
was in whole or in part requested by holders of securities of the
Company, other than holders of Registrable Securities in their
capacities as such, pursuant to demand registration rights, (x)
first, such securities held by the holders initiating such
registration and, if applicable, any securities proposed by the
Company to be sold for its own account, allocated in accordance with
the priorities then existing among the Company and such holders, (y)
second, any Registrable Securities requested to be included in such
registration by Requesting Holders, pro rata on the basis of the
number of Registrable Securities requested to be included by such
holders, and (z) third, any other securities of the Company proposed
to be included in such registration, allocated among the holders
thereof in accordance with the priorities then existing among the
Company and the holders of such other securities;
and any securities so excluded shall be withdrawn from and shall not be included
in such Piggyback Registration.
3. Registration Procedures. If and whenever the Company is required
to effect the registration of any Registrable Securities under the Securities
Act pursuant to Section 1 or Section 2, the Company will use reasonable efforts
to effect the registration and sale of such Registrable Securities in accordance
with the intended method of disposition thereof. Without limiting the foregoing,
the Company in each such case will, as expeditiously as possible, use reasonable
efforts to:
(a) prepare and file with the Commission the requisite
registration statement to effect such registration and to
cause such registration statement to become effective;
(b) prepare and file with the Commission such amendments
and supplements to such registration statement and any
prospectus used in connection therewith as may be necessary to
maintain the effectiveness of such registration statement and
to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities
covered by such registration statement, in accordance with the
intended methods of disposition thereof, until the earlier of
(i) such time as all of such securities have been disposed of
in accordance with the intended methods of disposition by the
seller or sellers
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thereof set forth in such registration statement and (ii) 120
days after such registration statement becomes effective;
(c) promptly notify each Requesting Holder and the
underwriter or underwriters, if any:
(i) when such registration statement or any
prospectus used in connection therewith, or any
amendment or supplement thereto, has been filed and,
with respect to such registration statement or any
post-effective amendment thereto, when the same has
become effective;
(ii) of any written request by the Commission for
amendments or supplements to such registration statement
or prospectus;
(iii) of the notification to the Company by the
Commission of its initiation of any proceeding with
respect to the issuance by the Commission of, or of the
issuance by the Commission of, any stop order suspending
the effectiveness of such registration statement; and
(iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale
under the applicable securities or blue sky laws of any
jurisdiction;
(d) furnish to each seller of Registrable Securities
covered by such registration statement such number of
conformed copies of such registration statement and of each
amendment and supplement thereto (in each case including all
exhibits and documents incorporated by reference), such number
of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule
424 promulgated under the Securities Act relating to such
holder's Registrable Securities, and such other documents, as
such seller may reasonably request to facilitate the
disposition of its Registrable Securities;
(e) register or qualify all Registrable Securities
covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each
holder thereof shall reasonably request, to keep such
registration or qualification in effect for so long as such
registration statement remains in effect, and take any other
action which may be reasonably necessary or advisable to
enable such holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such
holder, except that the Company shall not for any such purpose
be required (i) to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not
but for the requirements of this paragraph (e) be obligated to
be so qualified, (ii) to subject itself to taxation in any
such jurisdiction or (iii) to consent to general service of
process in any jurisdiction;
(f) use reasonable efforts to cause all Registrable
Securities covered by such registration statement to be
registered with or approved by such other
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governmental agencies or authorities as may be necessary to
enable each holder thereof to consummate the disposition of
such Registrable Securities;
(g) furnish to each Requesting Holder a signed
counterpart, addressed to such holder (and the underwriters,
if any), of
(i) an opinion of counsel for the Company, dated
the effective date of such registration statement (or,
if such registration includes an underwritten Public
Offering, dated the date of any closing under the
underwriting agreement), reasonably satisfactory in form
and substance to such holder, and
(ii) a "comfort" letter, dated the effective date
of such registration statement (and, if such
registration includes an underwritten Public Offering,
dated the date of any closing under the underwriting
agreement), signed by the independent public accountants
who have certified the Company's financial statements
included in such registration statement,
in each case covering substantially the same matters with
respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' letter,
with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten Public Offerings of
securities and, in the case of the accountants' letter, such
other financial matters, as such holder (or the underwriters,
if any) may reasonably request;
(h) notify each holder of Registrable Securities covered
by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of
which any prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and at the request of any such holder promptly
prepare and furnish to such holder a reasonable number of
copies of a supplement to or an amendment of such prospectus
as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(i) provide a CUSIP number and a transfer agent and
registrar for all Registrable Securities covered by such
registration statement not later than the effective date of
such registration statement; and
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(j) use reasonable efforts to cause all Registrable
Securities covered by such registration statement to be
listed, upon official notice of issuance, on any securities
exchange on which any of the securities of the same class as
the Registrable Securities are then listed.
The Company may require each holder of Registrable Securities as to
which any registration is being effected to, and each such holder, as a
condition to including Registrable Securities in such registration, shall,
furnish the Company with such information and affidavits regarding such holder
and the distribution of such securities as the Company may from time to time
reasonably request in writing in connection with such registration.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraph (h), such holder will
forthwith discontinue such holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph (h) and, if so directed by the Company,
will deliver to the Company all copies, other than permanent file copies, then
in such holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period referred to in paragraph (b)
shall be extended by a number of days equal to the number of days during the
period from and including the giving of notice pursuant to paragraph (h) and to
and including the date when each holder of any Registrable Securities covered by
such registration statement shall receive the copies of the supplemented or
amended prospectus contemplated by paragraph (h).
4. Underwritten Offerings
(a) Underwritten Requested Offerings. In the case of any
underwritten Public Offering being effected pursuant to a Requested
Registration, the Managing Underwriter and any other underwriter or underwriters
with respect to such offering shall be selected, after consultation with the
Company, by the holders of a majority of the Registrable Securities to be
included in such underwritten offering with the consent of the Company, which
consent shall not be unreasonably withheld. The Company shall enter into an
underwriting agreement in customary form with such underwriter or underwriters,
which shall include, among other provisions, indemnities to the effect and to
the extent provided in Section 6 The holders of Registrable Securities to be
distributed by such underwriters shall be parties to such underwriting agreement
and may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters also be made to and for their benefit and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement also be conditions precedent to their
obligations. No holder of Registrable Securities shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder and its ownership of the securities being registered on its behalf and
such holder's intended method of distribution and any other representation
required by law. No Requesting Holder may participate in such underwritten
offering unless such holder agrees to sell its Registrable Securities on the
basis provided in such underwriting agreement and completes and executes all
questionnaires, powers
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of attorney, indemnities and other documents reasonably required under the terms
of such underwriting agreement. If any Requesting Holder disapproves of the
terms of an underwriting, such holder may elect to withdraw therefrom and from
such registration by notice to the Company and the Managing Underwriter, and
each of the remaining Requesting Holders shall be entitled to increase the
number of Registrable Securities being registered to the extent of the
Registrable Securities so withdrawn in the proportion which the number of
Registrable Securities being registered by such remaining Requesting Holder
bears to the total number of Registrable Securities being registered by all such
remaining Requesting Holders.
(b) Underwritten Piggyback Offerings. If the Company at any time
proposes to register any of its securities in a Piggyback Registration and such
securities are to be distributed by or through one or more underwriters, the
Company will, subject to the provisions of Section 2(c), use its best efforts to
arrange for such underwriters to include the Registrable Securities to be
offered and sold by such holder among the securities to be distributed by such
underwriter, and such holders shall be obligated to sell their Registrable
Securities in such Piggyback Registration through such underwriters on the same
terms and conditions as apply to the other Company securities to be sold by such
underwriters in connection with such Piggyback Registration. The holders of
Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and such underwriter or
underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters also be made to and for
their benefit and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement also be conditions
precedent to their obligations. No holder of Registrable Securities shall be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements
regarding such holder and its ownership of the securities being registered on
its behalf and any other representation required by law. No Requesting Holder
may participate in such underwritten offering unless such holder agrees to sell
its Registrable Securities on the basis provided in such underwriting agreement
and completes and executes all questionnaires, powers of attorney, indemnities
and other documents reasonably required under the terms of such underwriting
agreement. If any Requesting Holder disapproves of the terms of an underwriting,
such holder may elect to withdraw therefrom and from such registration by notice
to the Company and the Managing Underwriter, and each of the remaining
Requesting Holders shall be entitled to increase the number of Registrable
Securities being registered to the extent of the Registrable Securities so
withdrawn in the proportion which the number of Registrable Securities being
registered by such remaining Requesting Holder bears to the total number of
Registrable Securities being registered by all such remaining Requesting
Holders.
5. Holdback Agreements.
(a) By the Holders of Registrable Securities. Unless the Managing
Underwriter (or, in the case of a non-underwritten Public Offering, the Company)
otherwise agrees, in connection with the first Public Offering hereunder, each
holder of Registrable Securities, by acquisition of such Registrable Securities,
agrees, and agrees to cause its Affiliates, not to effect any public sale or
distribution (including a sale under Rule 144) of such securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 14 days prior to and the longer
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of the 90 days or such number of days specified by the Managing Underwriter not
exceeding the 180 days after the effective date of any registration statement
filed by the Company in connection with a Public Offering (or for such shorter
period of time as is sufficient and appropriate, in the opinion of the Managing
Underwriter, in order to complete the sale and distribution of the securities
included in such registration), except as part of such registration statement,
whether or not such holder participates in such registration. Unless the
Managing Underwriter (or, in the case of a non-underwritten Public Offering, the
Company) otherwise agrees, in connection with any registration other than the
first Public Offering hereunder, each holder of Registrable Securities, by
acquisition of such Registrable Securities, agrees, and agrees to cause its
Affiliates, not to effect any public sale or distribution (including a sale
under Rule 144) of such securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the 14 days prior to and
the longer of the 90 days or such number of days specified by the Managing
Underwriter not exceeding the 180 days after the effective date of any
registration statement filed by the Company in connection with a Public Offering
(or for such shorter period of time as is sufficient and appropriate, in the
opinion of the Managing Underwriter, in order to complete the sale and
distribution of the securities included in such registration), except as part of
such registration statement, whether or not such holder participates in such
registration. Notwithstanding anything to the contrary in this Section 5(a) no
holder of Registrable Securities, or any of its Affiliates, shall be prohibited
from any public sale or distribution of such securities in connection with any
Effective Registration unless all officers, directors and any Person which
beneficially owns (as determined under Rule 13d-3 of the Exchange Act)
securities of the Company entitling such Person to vote 5% or more of the votes
eligible to be voted in the election of directors agrees to substantially the
same limitations on public sale or distribution applicable to holders of
Registrable Securities.
(b) By the Company, Affiliates and Other Securityholders. Unless the
Managing Underwriter otherwise agrees, in connection with the first Effective
Registration hereunder, the Company agrees, and agrees to cause its Affiliates,
(x) not to effect any public sale or distribution of the Company's equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, during the 14 days prior to and the longer of the 90 days
(or for such shorter period of time as is sufficient and appropriate, in the
opinion of the Managing Underwriter, in order to complete the sale and
distribution of the securities included in such registration), except as part of
such underwritten registration and except pursuant to registrations on Form S-4
or Form S-8 promulgated by the Commission or any successor or similar forms
thereto, and (y) to cause each holder of the Company's equity securities, or of
any securities convertible into or exchangeable or exercisable for such
securities, in each case purchased from the Company at any time after the date
of this Agreement (other than in a Public Offering), to agree not to effect any
such public sale or distribution of such securities (including a sale under Rule
144), during such period, except as part of such underwritten registration.
Unless the Managing Underwriter otherwise agrees, in connection with any
Effective Registration other than the first Effective Registration hereunder,
the Company agrees, and agrees to cause its Affiliates, (x) not to effect any
public sale or distribution of the Company's equity securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 14 days prior to and the longer of the 90 days or such number of days
specified by the Managing Underwriter not exceeding the 180 days after the
effective date of the registration statement filed in connection with an
underwritten offering made pursuant to a Requested Registration or a Piggyback
Registration (or for such shorter period of time as is ` and
9
appropriate, in the opinion of the Managing Underwriter, in order to complete
the sale and distribution of the securities included in such registration),
except as part of such underwritten registration and except pursuant to
registrations on Form S-4 or Form S-8 promulgated by the Commission or any
successor or similar forms thereto, and (y) to cause each holder of the
Company's equity securities, or of any securities convertible into or
exchangeable or exercisable for such securities, in each case purchased from the
Company at any time after the date of this Agreement (other than in a Public
Offering), to agree not to effect any such public sale or distribution of such
securities (including a sale under Rule 144), during such period, except as part
of such underwritten registration.
6. Indemnification.
(a) Indemnification by the Company. The Company shall, to the full
extent permitted by law, indemnify and hold harmless each seller of Registrable
Securities included in any registration statement filed in connection with a
Requested Registration or a Piggyback Registration, its directors and officers,
and each other Person, if any, who controls any such seller within the meaning
of the Securities Act, against any Losses, claims, damages, expenses or
liabilities, joint or several (together, "Losses"), to which such seller or any
such director or officer or controlling Person may become subject under the
Securities Act or otherwise, including but not limited to under the Exchange Act
and state securities laws, insofar as such Losses (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any such registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of a prospectus, in the light of the circumstances under
which they were made) not misleading, and the Company will reimburse such seller
and each such director, officer and controlling Person for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such Loss (or action or proceeding in respect thereof); provided
that the Company shall not be liable in any such case to the extent that any
such Loss (or action or proceeding in respect thereof) arises out of or is based
upon (x) an untrue statement or alleged untrue statement or omission or alleged
omission made in any such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such seller specifically stating that it is for use
in the preparation thereof, (y) such seller's failure to send or give a copy of
the final prospectus to the Persons asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus or (z) such
seller's use of any prospectus, or supplement or amendment thereof, or
distribution of securities therewith, of which such seller was notified to
discontinue use pursuant to Section 3(h) hereof. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
such seller or any such director, officer or controlling Person, and shall
survive the transfer of such securities by such seller. The Company shall also
indemnify each other Person who participates (including as an underwriter) in
the offering or sale of Registrable Securities, their officers and directors and
each other Person, if any, who
10
controls any such participating Person within the meaning of the Securities Act
to the same extent as provided above with respect to sellers of Registrable
Securities.
(b) Indemnification by the Sellers. Each holder of Registrable
Securities which are included or are to be included in any registration
statement filed in connection with a Requested Registration or a Piggyback
Registration, as a condition to including Registrable Securities in such
registration statement, shall, to the full extent permitted by law, indemnify
and hold harmless the Company, its directors and officers, and each other
Person, if any, who controls the Company within the meaning of the Securities
Act, against any Losses to which the Company or any such director or officer or
controlling Person may become subject under the Securities Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
seller specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement provided, however, that the obligation to
provide indemnification pursuant to this Section 6(b) shall be several, and not
joint and several, among such Indemnifying Parties on the basis of the number of
Registrable Securities included in such registration statement and the aggregate
amount which may be recovered from any holder of Registrable Securities pursuant
to the indemnification provided for in this Section 6(b) in connection with any
registration and sale of Registrable Securities shall be limited to the total
gross proceeds received by such holder from the sale of such Registrable
Securities. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities
by such seller. Such holders shall also indemnify each other Person who
participates (including as an underwriter) in the offering or sale of
Registrable Securities, their officers and directors and each other Person, if
any, who controls any such participating Person within the meaning of the
Securities Act to the same extent as provided above with respect to the Company.
(c) Notices of Claims, etc. Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraph (a) or (b) of this Section 6, such
Indemnified Party will, if a claim in respect thereof is to be made against an
Indemnifying Party pursuant to such paragraphs, give written notice to the
latter of the commencement of such action, provided that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under the preceding paragraphs of this
Section 6, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, the Indemnifying Party shall be entitled to
participate in and, unless, in the reasonable judgment of any Indemnified Party,
a conflict of interest between such Indemnified Party and any Indemnifying Party
exists with respect to such claim, to assume the defense
11
thereof, jointly with any other Indemnifying Party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party shall not be liable to such Indemnified Party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation; provided that the
Indemnified Party may participate in such defense at the Indemnified Party's
expense; and provided further that the Indemnified Party or Indemnified Parties
shall have the right to employ one counsel to represent it or them if, in the
reasonable judgment of the Indemnified Party or Indemnified Parties, it is
advisable for it or them to be represented by separate counsel by reason of
having legal defenses which are different from or in addition to those available
to the Indemnifying Party, and in that event the reasonable fees and expenses of
such one counsel shall be paid by the Indemnifying Party. If the Indemnifying
Party is not entitled to, or elects not to, assume the defense of a claim, it
will not be obligated to pay the fees and expenses of more than one counsel for
the Indemnified Parties with respect to such claim, unless in the reasonable
judgment of any Indemnified Party a conflict of interest may exist between such
Indemnified Party and any other Indemnified Parties with respect to such claim,
in which event the Indemnifying Party shall be obligated to pay the fees and
expenses of such additional counsel for the Indemnified Parties or counsels. No
Indemnifying Party shall consent to entry of any judgment or enter into any
settlement without the consent of the Indemnified Party which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. No Indemnifying Party shall be subject to any liability for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
(d) Contribution. If the indemnity and reimbursement obligation
provided for in any paragraph of this Section 6 is unavailable or insufficient
to hold harmless an Indemnified Party in respect of any Losses (or actions or
proceedings in respect thereof) referred to therein, then the Indemnifying Party
shall contribute to the amount paid or payable by the Indemnified Party as a
result of such Losses (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and the Indemnified Party on the other hand in connection
with statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations; provided, however, that the aggregate amount
which may be recovered from any holder of Registrable Securities pursuant to
this Section 6(d) in connection with any registration and sale of Registrable
Securities shall be limited to the total proceeds received by such holder from
the sale of such Registrable Securities. The relative fault 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 Indemnifying Party or the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an Indemnified Party as a result of the Losses
referred to in the first sentence of this paragraph shall be deemed to include
any legal and other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any Loss which is the subject of this
paragraph.
12
No Indemnified Party guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) Other Indemnification. Indemnification similar to that specified
in the preceding paragraphs of this Section 6 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any federal or state law or regulation of any governmental authority other than
the Securities Act. The provisions of this Section 6 shall be in addition to any
other rights to indemnification or contribution which an Indemnified Party may
have pursuant to law, equity, contract or otherwise. To the extent that the
indemnity provisions contained in any underwriting agreement to which the
Company is a party conflict with this Section 6 such underwriting agreement
shall control.
(f) Indemnification Payments. The indemnification required by this
Section 6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or Losses
are incurred; provided that the Person to whom expenses are paid or advanced
provides any undertaking to repay such advance if it is ultimately determined
that such Person is not entitled to indemnification hereunder.
7. Covenants Relating to Rule 144. The Company will file reports in
compliance with the Exchange Act, will comply with all rules and regulations of
the Commission applicable in connection with the use of Rule 144 and take such
other actions and furnish such holder with such other information as such holder
may request in order to avail itself of such rule or any other rule or
regulation of the Commission allowing such holder to sell any Registrable
Securities without registration, and will, at its expense, forthwith upon the
request of any holder of Registrable Securities, deliver to such holder a
certificate, signed by the Company's principal financial officer, stating (a)
the Company's name, address and telephone number (including area code), (b) the
Company's Internal Revenue Service identification number, (c) the Company's
Commission file number, (d) the number of shares of each class of Stock
outstanding as shown by the most recent report or statement published by the
Company, and (e) whether the Company has filed the reports required to be filed
under the Exchange Act for a period of at least 90 days prior to the date of
such certificate and in addition has filed the most recent annual report
required to be filed thereunder. If at any time the Company is not required to
file reports in compliance with either Section 13 or Section 15(d) of the
Exchange Act, the Company at its expense will, forthwith upon the written
request of the holder of any Registrable Securities, make available adequate
current public information with respect to the Company within the meaning of
paragraph (c)(2) of Rule 144.
8. Other Registration Rights. The Company represents and warrants to
the Investor that there is not in effect on the date hereof any agreement by the
Company (other than this Agreement) pursuant to which any holders of securities
of the Company have a right to cause the Company to register or qualify such
securities under the Securities Act or any securities or blue sky laws of any
jurisdiction. The Company shall not provide, or agree to provide, any rights to
cause the Company to register or qualify any securities of the Company under the
Securities Act or any securities or blue sky laws of any jurisdiction which
rights are adverse to the rights granted to the Investors hereunder.
13
9. Definitions.
(a) Except as otherwise specifically indicated, the following terms
will have the following meanings for all purposes of this Agreement:
"Affiliate," as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person; for purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" means this Registration Rights Agreement, as the same
shall be amended from time to time.
"Business Day" means a day other than Saturday, Sunday or any other
day on which banks located in the State of Illinois are authorized or obligated
to close.
"Commission" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"Common Stock" means shares of common stock, par value $0.01 per
share, of the Company, as constituted on the date hereof, and any stock into
which such common stock shall have been changed or any stock resulting from any
reclassification of such common stock.
"Company" has the meaning ascribed to it in the preamble.
"Cutback Registration" means any Requested Registration or Piggyback
Registration to be effected as an underwritten Public Offering in which the
Managing Underwriter with respect thereto advises the Company and the Requesting
Holders in writing that, in its opinion, the number of securities requested to
be included in such registration (including securities of the Company which are
not Registrable Securities) exceed the number which can be sold in such offering
without a reduction in the selling price anticipated to be received for the
securities to be sold in such Public Offering.
"Effective Date" means April 3, 2003, the effective date of the Plan
of Reorganization.
"Effective Long-Form Registration" means a Long-Form Registration
that results in an Effective Registration.
"Effective Registration" means a Requested Registration which has
been (a) declared or ordered effective in accordance with the rules of the
Commission, and (b) kept effective for the period of time contemplated by
Section 3(b) Notwithstanding the foregoing, a registration that does not become
effective after it has been filed with the Commission solely by reason of the
refusal to proceed of the Requesting Holders shall be deemed to be an Effective
Registration for purposes of this Agreement.
14
"Effective Short-Form Registration" means a Short-Form Registration
that results in an Effective Registration.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Form S-1" means Form S-I promulgated by the Commission under the
Securities Act, or any successor or similar long-form registration statement.
"Form S-3" means Form S-3 promulgated by the Commission under the
Securities Act, or any successor or similar short-form registration statement.
"Holder" has the meaning given in the Restructuring Agreement.
"Indemnified Party" means a party entitled to indemnity in
accordance with Section 6.
"Indemnifying Party" means a party obligated to provide indemnity in
accordance with Section 6.
"Initiating Holders" means any holder or holders of Registrable
Securities making a written request pursuant to Section 1 for the registration
of Registrable Securities.
"Investor" has the meaning ascribed to it in the preamble.
"Long-Form Registration" means a Requested Registration effected by
the filing of a registration statement on Form S-1 with the Commission.
"Losses" has the meaning ascribed to it in Section 6(a).
"Managing Underwriter" means, with respect to any Public Offering,
the underwriter or underwriters managing such Public Offering.
"NASD" means the National Association of Securities Dealers.
"Notice of Piggyback Registration" has the meaning ascribed to it in
Section 2(a).
"Person" means any natural person, corporation, limited liability
company, general partnership, limited partnership, proprietorship, other
business organization, trust, union or association.
"Piggyback Registration" means any registration of equity securities
of the Company under the Securities Act (other than a registration in respect of
a dividend reinvestment or similar plan for stockholders of the Company or on
Form S-4 or Form 5-8 promulgated by the Commission, or any successor or similar
forms thereto), whether for sale for the account of the Company or for the
account of any holder of securities of the Company (other than Registrable
Securities).
15
"Public Offering" means any offering of Common Stock to the public,
either on behalf of the Company or any of its securityholders, pursuant to an
effective registration statement under the Securities Act.
"Registrable Securities" means (i) the Shares and (ii) any
additional shares of Common Stock issued or distributed by way of a dividend,
stock split or other distribution in respect of the Shares, or acquired by way
of any rights offering or similar offering made in respect of the Shares. As to
any particular Registrable Securities, once issued such securities shall cease
to be Registrable Securities when (i) a registration statement with respect to
the sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement, (ii) they shall have been distributed to the public
pursuant to Rule 144, (iii) they are transferred to or become owned by a Person
who is not an Investor or (iv) they shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with its obligations under this Agreement to effect
the registration of Registrable Securities in a Requested Registration or a
Piggyback Registration, including, without limitation, all registration, filing,
securities exchange listing and NASD fees, all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, premiums and other costs of policies of insurance against
liabilities arising out of the Public Offering of the Registrable Securities
being registered and any fees and disbursements of underwriters customarily paid
by issuers or sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any, in respect of Registrable Securities,
which shall be payable by each holder thereof provided that the Company will not
pay the fees, expenses and disbursements of any counsel, accountants or advisors
(financial or otherwise) of any Person on whose behalf securities of the Company
are included in such registration.
"Requesting Holders" means, with respect to any Requested
Registration or Piggyback Registration, the holders of Registrable Securities
requesting to have Registrable Securities included in such registration in
accordance with this Agreement.
"Requested Registration" means any registration of Registrable
Securities under the Securities Act effected in accordance with Section 1.
"Restructuring Agreement" has the meaning ascribed to it in the
preamble.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act, and any successor provision thereto.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Shares" means shares of Common Stock received pursuant to the Plan
of Reorganization.
16
"Short-Form Registration" means a Requested Registration effected by
the filing of a registration statement on Form S-3 with the Commission.
(b) Unless the context of this Agreement otherwise requires, (1)
words of any gender include each other gender; (ii) words using the singular or
plural number also include the plural or singular number, respectively; (iii)
the terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Agreement; and (iv) the term "Section" refers to the specified
Section of this Agreement. `Whenever this Agreement refers to a number of days,
such number shall refer to calendar days unless Business Days are specified.
10. Miscellaneous
(a) Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to any Investor, to the appropriate address below:
High River Limited Partnership
c/o Icahn Associates Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000 Attn.: Xxxxxxx X. Xxxxxxxx
Debt Strategies Fund Inc.
c/x Xxxxxxx Xxxxx investment Managers, L.P.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxx
Northeast Investors Trust
c/o Northeast Investors
00 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn.: Xxxxx Xxxxxx
with copies to:
Xxxxx Xxxxxxx Berlack Israels LLP
000 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn.: Xxxxxx X. Xxxxxxxxx, Esq.
17
If to the Company, to:
Viskase Companies, Inc.
000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: President
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxx Brilliant, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice is to be delivered pursuant to this Section). Any party from
time to time may change its address,. facsimile number or other information for
the purpose of notices to that party by giving notice specifying such change to
the other parties hereto.
(b) Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof, and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
(c) Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument (which may be executed in any number of
counterparts) duly executed by or on behalf of each of the Company and Persons
owning 66 2/3% or more of the Registrable Securities.
(d) Waiver. Subject to paragraph (e of this Section, any term or
condition of this Agreement may be waived at any time by the party that is
entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any term or condition
of this Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term or condition of this Agreement on any
future occasion.
(e) Consents and Waivers by Holders of Registrable Securities. Any
consent of the holders of Registrable Securities pursuant to this Agreement, and
any waiver by such holders of any provision of this Agreement, shall be in
writing (which may be executed in any number of counterparts) and may be given
or taken by Persons owning 66 2/3% or more of the Registrable Securities, and
any such consent or waiver so given or taken will be binding on all the holders
of Registrable Securities.
18
(f) No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto, their
respective successors or permitted assigns and any other holder of Registrable
Securities, and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than any Person entitled to
indemnity under Section 6
(g) Assignment; Successors and Assigns Neither this Agreement nor
any right, interest or obligation hereunder may be assigned by any Investor
without the prior written consent of the Company and any attempt to do so will
be void; provided, however, any Investor may make such an assignment to an
Affiliate of such Investor provided that such Affiliate agrees to be bound by
the terms hereof. Subject to the preceding sentence, this Agreement is binding
upon, inures to the benefit of and is enforceable by the parties hereto and
their respective successors and assigns.
(h) Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
(i) Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
(j) Remedies. Except as otherwise expressly provided for herein, no
remedy conferred by any of the specific provisions of this Agreement is intended
to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise. The
election of any one or more remedies by any party hereto shall not constitute a
waiver by any such party of the right to pursue any other available remedies.
Damages in the event of breach of this Agreement by a party hereto
or any other holder of Registrable Securities would be difficult, if not
impossible, to ascertain, and it is therefore agreed that each such Person, in
addition to and without limiting any other remedy or right it may have, will
have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, and enforcing specifically
the terms and provisions hereof, and the Company and each holder of Registrable
Securities, by its acquisition of such Registrable Securities, hereby waives any
and all defenses it may have on the ground of lack of jurisdiction or competence
of the court to grant such an injunction or other equitable relief. The
existence of this right will not preclude any such Person from pursuing any
other rights and remedies at law or in equity which such Person may have.
(k) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
19
(l) Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
(m) Restrictions on Transfer. In order to clarify that the transfer
restrictions in Section 5.03(b) of the Restructuring Agreement are fully
applicable to the Registrable Securities, Section 5.03(b) of the Restructuring
Agreement is hereby amended by deleting such Section in its entirety and
replacing it with the following:
"Until April 4, 2006, no Holder may transfer (other than to another
Holder or to an affiliate of a Holder that agrees to be bound by the terms of
this Agreement as a Holder) any Registrable Securities (as defined in the
Registration Rights Agreement, dated as of April 15, 2003, between the Company
and the Holders). For this purpose, "transfer" means any mode (direct or
indirect, absolute or conditional, voluntary or involuntary) of disposing of or
parting with property or an interest therein. Notwithstanding the foregoing, and
other than transfers to another Holder or to an affiliate of another Holder that
agrees to be bound by the provisions of this paragraph (b), beginning on April
4, 2005, a Holder may transfer Registrable Securities for cash, provided that,
until and including April 3, 2006, (i) at least 20 business days before such
transfer such Holder shall have furnished to the Company with respect to the
transferee the information that would be required in a Schedule I 3D filed by
the transferee with respect to the transfer and (ii) the Company shall not have
notified the Holder within that period that it or a person it designates will
purchase the securities to be transferred on the same terms as the proposed
transferee (in which case such Holder shall transfer them to the Company or its
designee on such terms). If the Company does not so notify the Holder, the
Holder shall be free for a period of 90 days to transfer the securities to the
proposed transferee on terms no more favorable to the transferee than the terms
described to the Company, after which the transfer will again be subject to the
terms of this Section. The Registrable Securities held by each Holder will be
appropriately legended to reflect the provisions of this Section."
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
HIGH RIVER LIMITED PARTNERSHIP
By: ____________________________________
Name:
Title:
DEBT STRATEGIES FUND, INC.
By: ____________________________________
Name:
Title:
20
NORTHEAST INVESTORS TRUST
By: ____________________________________
Name:
Title:
VISKASE COMPANIES, INC.
By: ____________________________________
Name:
Title:
21
