VISKASE COMPANIES, INC. REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
VISKASE
COMPANIES, INC.
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
dated
as of November 7, 2006 is made and entered into by and between VISKASE
COMPANIES, INC., a Delaware corporation (the “Company”)
and
the persons identified on Schedule
I
hereto
(each, an “Investor”
and
collectively, the “Investors”).
Capitalized terms used but not otherwise defined herein have the meanings
given
to them in the Stock Purchase Agreement (defined below).
WHEREAS,
the Investors and the Company have entered into that certain Series A Preferred
Stock Purchase Agreement, dated as of the date hereof, by and between the
Investors and the Company (the “Stock
Purchase Agreement”);
WHEREAS,
pursuant to the Stock Purchase Agreement, the Company has agreed to sell
and the
Investors have agreed to purchase shares of Series A Preferred
Stock;
WHEREAS,
the execution and delivery of this Agreement is a condition to the consummation
of the transactions contemplated by the Stock Purchase Agreement; and
WHEREAS,
the Company desires to grant registration rights for the Registrable Securities
pursuant to this Agreement.
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:
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1.
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Requested
Registrations.
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1.1 Registration
Requests.
Upon
the written request of one or more Initiating Holders of Registrable Securities
holding a majority of all then outstanding Registrable Securities 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 (10) 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 its best efforts to effect the registration under the Securities Act
of (a)
the Registrable Securities which the Company has been so requested to register
by such Initiating Holder or Holders, and (b) all other Registrable Securities
the holders of which have made written requests to the Company for registration
thereof within fifteen (15) calendar days after the giving of the Notice
of
Requested Registration, all to the extent necessary to permit the disposition
(in accordance with the intended methods thereof) of the Registrable Securities
so to be registered. If requested by the holders of a majority of the
Registrable 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
6.1.
Subject
to Section
1.5,
the
Company may include in such registration other securities for sale for its
own
account or for the account of any other Person.
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1.2 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:
(a) In
the case of a
Long-Form Registration, the Company has previously effected three Effective
Long-Form Registrations since the date hereof; 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
1.2;
(b) the
Registrable
Securities requested by Initiating Holders to be so registered does not
constitute at least twenty-five percent (25%) of the total Registrable
Securities then outstanding; or
(c) such
request is received
by the Company less than one hundred eighty (180) calendar days following
the
effective date 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
statement but was unable to participate fully as a result of Section
1.5
or
3.3.
1.3 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 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.
1.4 Registration
Expenses.
The
Company will pay all Registration Expenses incurred in connection with any
Requested Registration.
1.5 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 (a) 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 (b) 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 Shelf
Registration Statement.
Upon
the written request of one or more Initiating Holders of Registrable Securities
holding a majority of all then outstanding Registrable Securities (such written
request not to be provided prior to the earlier to occur of (a) (i) thirty
(30)
calendar days prior to the scheduled expiration or (ii) the earlier termination
of the Rights Offering, as applicable, and (b) one hundred fifty (150) calendar
days from Closing (the “Effective
Date”)),
the
Company shall within thirty (30) calendar days of receipt thereof file with
the
Commission, and thereafter use its best efforts to have declared effective
as
soon as practicable after the filing thereof, a “shelf” registration statement
(a “Shelf
Registration Statement”)
on
Form S-1 pursuant to Rule 415 under the Securities Act or on such
other form as may be appropriate under the Securities Act, in each case,
covering the resale of all of the Registrable Securities (the “Shelf
Registration”).
The
Company shall, subject to customary terms and conditions, use its best efforts
to keep the Shelf Registration Statement continuously effective from the
date
that such Shelf Registration Statement is declared effective during the
Effective Period to the extent required to permit the disposition (in accordance
with the intended method or methods thereof, as aforesaid) of the Registrable
Securities so registered. The Company will pay all Registration Expenses
incurred in connection with any Shelf Registration.
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| 3. |
Piggyback
Registrations.
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3.1 Right
to Include Registrable Securities.
Notwithstanding any limitation contained in Section 1
or
Section
2,
if the
Company at any time on or after the Effective Date proposes to effect a
Piggyback Registration, it will give written notice (a “Notice
of Piggyback Registration”),
at
least fifteen (15) calendar 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 3,
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 fifteen (15) calendar 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 that the
Company has been so requested to register, all to the extent necessary 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,
(a) 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 to a Requested Registration under Section
1
or a
Shelf Registration under Section 2,
and
(b) 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
3
shall
relieve the Company of its obligations to effect a Requested Registration
under
Section
1
or a
Shelf Registration under Section
2.
3.2 Registration
Expenses.
The
Company will pay all Registration Expenses incurred in connection with any
Piggyback Registration.
3.3 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 that the
Managing Underwriter advises the Company can be sold in such
offering:
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(a) if
such
registration as initially proposed by the Company was solely a primary
registration of its securities, (i) first,
the
securities proposed by the Company to be sold for its own account and
(ii) second,
(a) any 2003 Securities requested to be included in such registration by
requesting holders of 2003 Securities, (b) any Registrable Securities
requested to be included in such registration by Requesting Holders and
(c) any other securities of the Company proposed to be included in such
registration, in the case of clauses (a),
(b)
and
(c)
above,
allocated among the holders thereof in accordance with the priorities then
existing among such holders; and
(b) 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, (i) 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, (ii) second,
if such
registration was not initially requested by holders of the 2003 Securities
in
their capacity as such, any 2003 Securities requested to be included in such
registration by requesting holders of 2003 Securities, (iii) third,
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 (iv) fourth,
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.
4. Blackout
Periods.
The
Company shall have the right to delay the filing or effectiveness of a
registration statement required pursuant to Section
1
or
Section 2
hereof
or suspend sales under such registration statement during no more than three
(3)
periods aggregating to not more than ninety (90) calendar days in any
twelve-month period (a “Blackout
Period”)
in the
event that (a) the Company would, in accordance with the advice of its
counsel, be required to disclose in the registration statement information
not
otherwise then required by law to be publicly disclosed and (b) in the
reasonable judgment of the Company’s Board of Directors, (i) there is a
reasonable likelihood that such disclosure, or any other action to be taken
in
connection with the prospectus, would materially and adversely affect or
interfere with any financing, acquisition, merger, disposition of assets
(not in
the ordinary course of business), corporate reorganization or other material
transaction involving the Company or (ii) there is a reasonable likelihood
that such disclosure would materially and adversely affect or interfere with
the
best interests of the Company or its shareholders; provided,
however,
that
the Company shall delay during such Blackout Period the filing or effectiveness
of, or suspend sales under, any other registration statement required pursuant
to the registration rights of the holders of any other securities of the
Company. The Company shall promptly give the holders of Registrable Securities
written notice of such determination containing a general statement of the
reasons for such postponement and an approximation of the anticipated delay.
Notwithstanding anything else herein to the contrary, the Company shall not
be
required to disclose to the holders of Registrable Securities any of the
facts
or circumstances regarding material non-public information giving rise to
any
Blackout Period.
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5. 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,
Section 2
or
Section
3
hereof,
the Company will use its best 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 its best efforts to:
5.1 prepare
and file with the Commission the requisite registration statement to effect
such
registration and to cause such registration statement to become effective;
5.2 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 (a) such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement and (b) one hundred twenty
(120) calendar days after such registration statement becomes effective (such
period tolled for any period that the registration statement and/or prospectus
is unavailable to the Requesting Holders as a result of Section
4,
Section
5.3(c)
or
Section
5.3(d);
provided that, with respect to the Shelf Registration Statement, such period
shall be the Effective Period);
5.3 promptly
notify each Requesting Holder and the underwriter or underwriters, if any:
(a) 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, (b) of any written request by the
Commission for amendments or supplements to such registration statement or
prospectus, (c) 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 (d) 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;
5.4 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 holder may reasonably request
to
facilitate the disposition of its Registrable Securities;
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5.5 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, keep such registration or qualification
in effect for so long as such registration statement remains in effect, and
take
any other action that 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 (a) to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements
of
this Section 5.5
be
obligated to be so qualified, (b) to subject itself to taxation in any such
jurisdiction or (c) to consent to general service of process in any
jurisdiction;
5.6 cause
all
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may
be
necessary to enable each holder thereof to consummate the disposition of
such
Registrable Securities;
5.7 furnish
to each Requesting Holder a signed counterpart, addressed to such holder
(and
the underwriters, if any), of (a) 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, including, to the extent requested, a “10b-5 opinion,”
and (b) 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;
5.8 notify
in
writing 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;
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5.9 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
5.10
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 Section 5.8,
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 Section 5.8
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 at the time of receipt of such notice.
In the event the Company shall give any such notice, the period referred
to in
Section 5.2
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 Section 5.8
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 Section 5.8.
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6.
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Underwritten
Offerings.
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6.1 Underwritten
Requested or Shelf Offerings.
In the
case of any underwritten Public Offering being effected pursuant to a Requested
Registration or a Shelf 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
8.
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 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
each
such remaining Requesting Holder bears to the total number of Registrable
Securities being registered by all such remaining Requesting
Holders.
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6.2 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 3.3,
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, including provisions requiring such holder to refrain
from selling Registrable Securities for a customary period of time before
and
following such offering, 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 that the number of
Registrable Securities being registered by each such remaining Requesting
Holder
bears to the total number of Registrable Securities being registered by all
such
remaining Requesting Holders.
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7.
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Holdback
Agreements.
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7.1 Unless
the Managing Underwriter 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 fourteen (14) calendar days prior to and
the
ninety (90) calendar days after the date the registration statement is declared
effective by the SEC (an “Effective
Registration”)
in
connection with such 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
Effective 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
7
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 and directors of the Company agree
to
substantially the same limitations on public sale or distribution applicable
to
holders of Registrable Securities.
7.2 Unless
the Managing Underwriter, if any, otherwise agrees, in connection with the
first
Effective Registration hereunder, the Company agrees, and agrees to cause
its
Affiliates, (a) 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 fourteen (14) calendar days prior
to
and the ninety (90) calendar days after the date such registration statement
is
declared effective by the SEC (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
Effective 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 (b) 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 fourteen (14) calendar days prior
to
and the ninety (90) calendar 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 appropriate, in the opinion of the Managing Underwriter,
in
order to complete the sale and distribution of the securities included in
such
Effective 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.
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8.
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Indemnification.
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8.1 Indemnification
by the Company.
The
Company shall, to the fullest 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, a Shelf
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
(a) 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, (b) 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, and such
seller was provided such final prospectus or (c) such seller’s continued
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 5.8
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 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.
8.2 Indemnification
by the Sellers.
Each
holder of Registrable Securities that are included or are to be included
in any
registration statement filed in connection with a Requested Registration,
a
Shelf Registration or a Piggyback Registration, as a condition to including
Registrable Securities in such registration statement, shall, to the fullest
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 8.2
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 that may be recovered from any holder of Registrable
Securities pursuant to the indemnification provided for in this Section 8.2
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.
10
8.3 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
Section 8.1
or
8.2,
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 Section
8.1
or 8.2,
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 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 that 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. No Indemnifying Party shall
consent to entry of any judgment or enter into any settlement without the
consent of the Indemnified Party that 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.
11
8.4 Contribution.
If the
indemnity and reimbursement obligation provided for in this Section 8
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 that resulted in such
Losses, as well as any other relevant equitable considerations; provided,
however,
that
the aggregate amount that may be recovered from any holder of Registrable
Securities pursuant to this Section 8.4
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 that is the subject of this paragraph. 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.
8.5 Other
Indemnification.
Indemnification similar to that specified in the preceding paragraphs of
this
Section 8
(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 8
shall be
in addition to any other rights to indemnification or contribution that 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 8,
such
underwriting agreement shall control.
12
8.6 Indemnification
Payments.
The
indemnification required by this Section 8
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 an undertaking to repay
such advance if it is ultimately determined that such Person is not entitled
to
indemnification hereunder.
9. 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 capital 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 ninety (90) calendar 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.
10.
Other
Registration Rights.
The
Company represents and warrants to the Investors that there is not in effect
on
the date hereof any agreement by the Company (other than this Agreement,
the
2003 Registration Rights Agreement and the 2004 Registration Rights 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
11.
Definitions;
Construction.
11.1 Definitions.
Except
as otherwise specifically indicated, the following terms will have the following
meanings for all purposes of this Agreement:
“2003
Securities”
shall
mean any outstanding capital stock of the Company that constitutes a
“Registrable Security,” as such term is defined in the 2003 Registration Rights
Agreement; provided, however, that if such capital stock also constitutes
Registrable Securities hereunder, such capital stock shall be deemed to
be
Registrable Securities and not 2003 Securities for all purposes
hereunder.
“2003
Registration Rights Agreement”
shall
mean that certain Registration Rights Agreement dated April 15, 2003 by and
among High River Limited Partnership, Debt Strategies Fund, Inc., Northeast
Investors Trust and the Company.
“2004
Registration Rights Agreement”
shall
mean that certain Registration Rights Agreement, dated as of June 29, 2004,
by
and between Xxxxxxxxx & Company, Inc. and the Company.
“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”
has
the
meaning set forth in the preamble.
“Blackout
Period”
has
the
meaning set forth in Section 4.
“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 set forth 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 that are not Registrable Securities)
exceed
the number that 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”
has
the
meaning set forth in Section 2.
“Effective
Long-Form Registration”
means
a
Long-Form Registration with respect to 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
5.2.
14
“Effective
Period”
shall
mean the period commencing with the effective date of the Shelf Registration
Statement and ending at such time as no more Registrable Securities are
outstanding.
“Effective
Registration”
has
the
meaning set forth in Section
7.1.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Form
S-1”
means
Form S-1 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.
“Form
S-4”
means
Form S-4 promulgated by the Commission under the Securities Act, or any
successor or similar registration statement for the registration of securities
issued in business combination transactions.
“Form
S-8”
means
Form S-8 promulgated by the Commission under the Securities Act, or any
successor or similar registration statement for the registration of securities
to be offered to employees pursuant to employee benefit plans.
“Indemnified
Party”
means
a
party entitled to indemnity in accordance with Section 8.
“Indemnifying
Party”
means
a
party obligated to provide indemnity in accordance with Section 8.
“Initiating
Holders”
means
any holder or holders of Registrable Securities making a written request
pursuant to Section
1
or
Section
2
for the
registration of Registrable Securities.
“Investor”
and
“Investors”
have
the meaning set forth in the preamble.
“Key
Investor”
means
Koala Holding LLC.
“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 set forth in Section 8.1.
“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 set forth in Section 3.1.
15
“Notice
of Requested Registration”
has
the
meaning set forth in Section
1.1.
“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 S-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).
“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
(a) the Shares, (b) the Common Stock received upon conversion of the
Shares, (c) the Option Shares, (d) any additional shares of Common Stock
issued or distributed by way of a dividend, stock split or other distribution
in
respect of the Shares and Option Shares, or acquired by way of any rights
offering or similar offering made in respect of the Shares and Option Shares
and
(e) in the case of a Key Investor, any Common Stock acquired by the Key
Investor
prior to the date hereof and any additional shares of Common Stock issued
or
distributed by way of a dividend, stock split or other distribution in
respect
of such Common Stock. As to any particular Registrable Securities, once
issued
such securities shall cease to be Registrable Securities when (x) a
registration statement with respect to the sale of such securities shall
have
become effective after the date hereof under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (y) they shall have been distributed to the public pursuant to
Rule 144 or (z) they shall have ceased to be outstanding.
“Registration
Expenses”
means
all reasonable 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, a Shelf 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, except one
special
counsel to all holders of such securities.
16
“Requested
Registration”
means
any registration of Registrable Securities under the Securities Act effected
in
accordance with Section
1.
“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.
“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 Series A Preferred Stock issued by the Company pursuant to the
Stock Purchase Agreement and any additional shares of Series A Preferred
Stock
issued or distributed by way of a dividend, stock split or other distribution
in
respect of shares of Series A Preferred Stock.
“Shelf
Registration”
has
the
meaning set forth in Section 2.
“Shelf
Registration Statement”
has
the
meaning set forth in Section 2.
“Short-Form
Registration”
means
a
Requested Registration effected by the filing of a registration statement
on
Form S-3 with the Commission.
“Stock
Purchase Agreement”
has
the
meaning set forth in the recitals.
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12.
|
Miscellaneous.
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12.1
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
addresses or facsimile numbers set forth on the signature pages hereto. All
such
notices, requests and other communications will (a) if delivered
personally, be deemed given upon delivery, (b) if delivered by facsimile
transmission, be deemed given upon receipt and (c) if delivered by mail in
the manner described, 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 12.1).
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.
17
12.2
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.
12.3
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 a majority of the Registrable
Securities.
12.4
Waiver.
Subject
to Section 12.5,
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.
12.5
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 a majority of
the
Registrable Securities, and any such consent or waiver so given or taken
will be
binding on all the holders of Registrable Securities.
12.6
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 8.
12.7
Successors
and Assigns; Assignment.
All
covenants and agreements in this Agreement by or on behalf of any of the
parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. In addition, this
Agreement may be assigned in whole or from time to time in part by the Investors
in connection with the sale or other transfer of any or all of the Investors’
Registrable Securities, including sales or transfers to Affiliates.
12.8
Headings.
The
headings used in this Agreement have been inserted for convenience of reference
only and do not define or limit the provisions hereof.
12.9
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, (a) such provision will be fully severable, (b) this
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof and (c) 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.
18
12.10
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 that such
Person
may have.
12.11 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Delaware applicable to a contract executed and performed in such
State,
without giving effect to the conflicts of laws principles thereof.
12.12
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.
[THIS
SPACE LEFT BLANK INTENTIONALLY]
19
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
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COMPANY:
|
||||
|
VISKASE
COMPANIES, INC.
|
||||
|
By:
|
/s/
|
|||
|
Xxxxxx
X. Xxxxxxx, President and Chief Executive Officer
|
||||
|
0000
Xxxxx Xxxx Xxxxxx, Xxxxx 000
|
||||
|
Xxxxxx,
Xxxxxxxx 00000
|
||||
|
Fax:
(000) 000-0000
|
||||
|
|
||||
|
For
notice purposes, with a copy to:
|
||||
|
|
||||
|
Xxxxxx
X. Xxxxxx
|
||||
|
Jenner
& Block LLP
|
||||
|
Xxx
XXX Xxxxx
|
||||
|
Xxxxxxx,
XX 00000
|
||||
|
Fax:
(000) 000-0000
|
||||
Signature
Page to Registration Rights Agreement
|
INVESTOR:
|
||||
|
|
||||
|
KOALA
HOLDING LLC
|
||||
|
|
||||
|
|
||||
|
By:
|
/s/
|
|||
|
|
||||
|
c/o
Icahn Associates Corp.
|
||||
|
000
0xx Xxxxxx, 00xx Xxxxx
|
||||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||||
|
Facsimile:
(000) 000-0000
|
||||
|
|
||||
|
For
notice purposes, with a copy to:
|
||||
|
|
||||
|
Icahn
Associates Corp.
|
||||
|
000
0xx Xxxxxx, 00xx Xxxxx
|
||||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||||
|
Attn:
Xxxxx Xxxxxxxxx
|
||||
|
Facsimile:
(000) 000-0000
|
||||
|
|
||||
|
INVESTOR:
|
||||
|
|
||||
|
XXXXX
XXXXXXXX, LTD.
|
||||
|
|
||||
|
|
||||
|
By:
|
/s/
|
|||
|
|
||||
|
0000
Xxxxxxx Xxxxxx, Xxxxx 000
|
||||
|
Xxxxxxxx,
Xxxxxxxx 00000
|
||||
|
Attn:
Xxxxxxxx Xxxxxxxx
|
||||
|
Facsimile:
(000) 000-0000
|
||||
|
|
||||
|
For
notice purposes, with a copy to:
|
||||
|
|
||||
|
Xxxxxx
Xxxxxxxxx
|
||||
|
Xxxxxxxx
and Xxxxxx
|
||||
|
00
X. Xxxxxx Xxxxx, 00xx Xxxxx
|
||||
|
Xxxxxxx,
XX 00000
|
||||
|
|
||||
|
INVESTOR:
|
||||
|
|
||||
|
NORTHEAST
INVESTORS TRUST
|
||||
|
|
||||
|
|
||||
|
By:
|
/s/
|
|||
|
|
||||
|
000
Xxxxxxx Xxxxxx, Xxxxx 0000
|
||||
|
Xxxxxx,
Xxxxxxxxxxxxx 02110-1745
|
||||
|
Attn:
Xxxxx Xxxxxx
|
||||
|
Facsimile:
(000) 000-0000
|
||||
Signature
Page to Registration Rights
Agreement
SCHEDULE
I
INVESTORS
|
Koala
Holding LLC
|
|
Xxxxx
Xxxxxxxx, Ltd.
|
|
Northeast
Investors Trust
|
