Exhibit 4
RESTRUCTURING AGREEMENT
dated as of July 15, 2002
by and among
HIGH RIVER LIMITED PARTNERSHIP
DEBT STRATEGIES FUND, INC.
NORTHEAST INVESTORS TRUST
and
VISKASE COMPANIES, INC.
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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.
ARTICLE I THE OFFER
1.01 The Offer..................................................................................................7
1.02 Holder Actions.............................................................................................9
1.03 Company Board Representation; Section 14(f)................................................................9
1.04 Conditions to Holders' Obligations........................................................................10
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.01 Organization and Qualification............................................................................11
2.02 Capital Stock.............................................................................................11
2.03 Authority Relative to This Agreement......................................................................12
2.04 Non-Contravention; Approvals and Consents.................................................................12
2.05 Legal Proceedings.........................................................................................13
2.06 Information Supplied......................................................................................13
2.07 Company Rights Agreement..................................................................................14
2.08 Section 203 of the DGCL Not Applicable....................................................................14
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
3.01 Organization and Qualification............................................................................14
3.02 Authority Relative to This Agreement......................................................................14
3.03 Non-Contravention; Approvals and Consents.................................................................15
3.04 Legal Proceedings.........................................................................................15
3.05 Information Supplied......................................................................................15
3.06 Ownership of Old Notes....................................................................................16
3.07 Confidentiality Agreements................................................................................16
ARTICLE IV COVENANTS OF THE COMPANY
4.01 Merger ...................................................................................................16
4.02 Company Rights Agreement..................................................................................16
4.03 Subordination Agreement...................................................................................16
4.04 Plan of Reorganization....................................................................................16
4.05 Conduct of Business.......................................................................................17
4.06 Issuance of Securities....................................................................................17
ARTICLE V ADDITIONAL AGREEMENTS
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5.01 Charter Amendment.........................................................................................17
5.02 Regulatory and Other Approvals............................................................................18
5.03 Transfer Restrictions; Termination of Transfer Restrictions...............................................18
5.04 Restricted Stock Plan.....................................................................................19
5.05 No Solicitations..........................................................................................19
5.06 Expenses..................................................................................................20
5.07 Brokers or Finders........................................................................................20
5.08 Notice of Developments....................................................................................20
5.09 Notice and Cure...........................................................................................20
5.10 Fulfillment of Conditions.................................................................................20
5.11 Registration Rights Agreement.............................................................................21
5.12 Employment Agreements.....................................................................................21
ARTICLE VI COVENANTS OF THE HOLDERS
6.01 Forbearance...............................................................................................21
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER
7.01 Termination...............................................................................................22
7.02 Effect of Termination.....................................................................................24
7.03 Amendment and Waiver; Holder Requests and Consents........................................................24
7.04 Notice of Termination by Holders..........................................................................25
ARTICLE VIII GENERAL PROVISIONS
8.01 Non-Survival of Representations, Warranties, Covenants and Agreements.....................................25
8.02 Notices...................................................................................................25
8.03 Entire Agreement; Incorporation of Exhibits...............................................................27
8.04 Public Announcements......................................................................................27
8.05 No Third Party Beneficiary................................................................................27
8.06 No Assignment; Binding Effect.............................................................................27
8.07 Headings..................................................................................................27
8.08 Invalid Provisions........................................................................................27
8.09 Governing Law.............................................................................................28
8.10 Enforcement of Agreement..................................................................................28
8.11 Certain Definitions.......................................................................................28
8.12 [intentionally omitted.]..................................................................................29
8.13 Counterparts..............................................................................................29
Annex A FORM OF INDENTURE
Annex B CERTIFICATE OF DESIGNATIONS
Annex C CONDITIONS TO THE OFFER
Annex D PLAN OF REORGANIZATION
Annex E RESTRICTED STOCK PLAN
Annex F REGISTRATION RIGHTS AGREEMENT
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Annex G AMENDED AND RESTATED BYLAWS
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GLOSSARY OF DEFINED TERMS
The following terms, when used in this Agreement, have the meanings
ascribed to them in the corresponding Sections of this Agreement listed below:
"affiliate" -- Section 8.11(a)
"Alternative Proposal" -- Section 5.05
"Bankruptcy Law" -- Section 8.11(b)
"beneficially" -- Section 8.11(c)
"Board of Directors" -- Section 1.01(a)
"business day" -- Section 8.11(d)
"Company" -- Preamble
"Company Common Stock" -- Section 2.02
"Company Preferred Stock" -- Section 2.02
"Company Rights" -- Section 1.04(d)
"Company Rights Agreement" -- Section 1.04(d)
"Company SEC Reports" -- Section 8.11(e)
"Restricted Stock Plan" -- Section 5.04
"Confidentiality Agreement" -- Section 8.03
"Consummation Date" -- Section 4.01
"Contracts" -- Section 2.04(a)
"control," "controlling," "controlled
by" and "under common control with" -- Section 8.11(a)
"Converted Common Stock" -- Section 5.03
"Custodian" -- Section 8.11(f)
"DGCL" -- Section 2.08
"Disclosure Schedule" -- Section 8.11(g)
"Employment Agreements" -- Section 5.12
"Exchange Act" -- Section 1.01(a)
"Final Expiration Date" -- Section 1.01(a)
"Governmental or Regulatory Authority" -- Section 2.04(a)
"group" -- Section 8.11(k)
"Holders" -- Preamble
"Indemnification Agreements" -- Section 5.12
"Independent Director" -- Section 1.03(a)
"knowledge" -- Section 8.11(h)
"laws" -- Section 2.04(a)
"Lien" -- Section 8.11(i)
"material", "material adverse
effect" and "materially adverse" -- Section 8.11(j)
"Minimum Condition" -- Annex C
"New Notes" -- Section 1.01(a)
"New Preferred Stock -- Section 1.01(a)
"Offer" -- Section 1.01(a)
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"Offer Documents" -- Section 1.01(b)
"Old Notes" -- Preamble
"Options" -- Section 2.02
"orders" -- Section 2.04(a)
"Per Note Amount" -- Section 1.01(a)
"person" -- Section 8.11(k)
"Plan of Reorganization" -- Section 1.01(d)
"Public Offering" -- Section 8.11(l)
"Representatives" -- Section 8.11(m)
"SEC" -- Section 1.01(a)
"Significant Subsidiaries" -- Section 8.11(n)
"Subsidiary" -- Section 8.11(o)
"Superior Proposal" -- Section 7.01(d)
"this Agreement" -- Preamble
"TIA" -- Section 1.04(f)
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This RESTRUCTURING AGREEMENT dated as of July 15, 2002 ("this Agreement")
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 trust (collectively, the "Holders")
and VISKASE COMPANIES, INC., a Delaware corporation (the "Company").
WHEREAS, the Holders and the Company have each determined that it is
advisable and in their respective best interests to consummate, and have
approved, the transaction provided for herein in which the Company would make an
offer to acquire all of the issued and outstanding 10 1/4% Senior Notes due
2001, of the Company ("Old Notes") in exchange for new notes and preferred stock
upon the terms and subject to the conditions of this Agreement; and
WHEREAS, the Holders and the Company desire to make certain
representations, warranties and agreements in connection with the transactions
contemplated by this Agreement and also to prescribe various conditions to the
consummation of such transactions;
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:
ARTICLE I
THE OFFER
1.01 The Offer. (a) Provided that this Agreement shall not have been
terminated in accordance with Section 7.01 and none of the events set forth in
Annex C hereto shall have occurred and be continuing, as promptly as
practicable, but in no event later than 15 business days, after the date hereof,
the Company shall commence (within the meaning of applicable rules under the
Securities Exchange Act of 1934, as amended (such Act and the rules and
regulations promulgated thereunder being referred to herein as the "Exchange
Act")) and will in good faith pursue an exchange offer (the "Offer") to acquire
all of the issued and outstanding Old Notes in exchange for $367.96271 principal
amount of the Company's 8% Senior Subordinated Secured Notes Due 2008 (the "New
Notes") to be issued under an indenture in the form of Annex A hereto, and
126.82448 shares of the Company's Series A Convertible Preferred Stock having
the designations set forth in Annex B hereto (the "New Preferred Stock"), per
$1,000 of principal amount of Old Note (such amount, or any greater amount per
Old Notes paid pursuant to the Offer, the "Per Note Amount"). Subject to the
Company's and the Holders' right of termination set forth in Section 7.01, the
obligation of the Company to consummate the Offer and to accept for exchange Old
Notes tendered pursuant to the Offer shall be subject only to the conditions set
forth in Annex C hereto. The Company shall not waive any such condition or make
any changes in the terms and conditions of the Offer without the consent of the
Holders; provided, however, the Company may waive any condition or amend the
terms and conditions of the Offer to the extent such waiver or amendment relates
to matters ministerial or administrative in nature with respect to the Offer,
and the Offer may be extended by the Company (1) for any period to the
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extent required by law or by any rule, regulation, interpretation or
position of the Securities and Exchange Commission (the "SEC") or the staff
thereof applicable to the Offer, and (2) to any date not exceeding the 75th day
following the date on which the Offer is commenced (the "Final Expiration Date")
if (x) immediately prior to the expiration of the Offer any condition to the
Offer shall not be satisfied and (y) the board of directors of the Company (the
"Board of Directors") determines there is a reasonable basis to believe that
such condition could be satisfied within such period; provided further that the
Company shall extend the Offer pursuant to clause (2) at the request of the
Holders to a date not later than the Final Expiration Date. Assuming the prior
satisfaction or waiver of the conditions of the Offer and subject to the
foregoing right to extend the Offer, the Company shall issue the New Notes and
the New Preferred Stock, rounded down to the nearest whole dollar and whole
share, respectively, in exchange for Old Notes tendered pursuant to the Offer as
soon as practicable after the Consummation Date. The Offer shall be conducted in
a manner that will make it exempt from registration under Section 3(a)(9) of the
Securities Act of 1933, as amended (the "Securities Act").
(b) As soon as practicable on the date of commencement of the Offer, the
Company shall take such steps as are reasonably necessary to cause an Offer to
Exchange and a related Letter of Transmittal, each in a form customary for a
transaction of the type contemplated hereunder, to be disseminated to the
holders of Old Notes as and to the extent required by applicable federal
securities laws (the Offer to Exchange, Letter of Transmittal and any related
summary advertisement, together with all amendments and supplements thereto, the
"Offer Documents"), which Offer Documents shall incorporate the material terms
of the Restructuring Agreement and other customary terms. The Holders and the
Company shall correct promptly any information provided by any of them for use
in the Offer Documents which shall have become false or misleading, and the
Company shall take all steps necessary to cause the Offer Documents as so
corrected to be disseminated to holders of Old Notes, in each case as and to the
extent required by applicable federal securities laws. The Holders and their
counsel shall be given an opportunity to review and comment on the Offer
Documents, and edit information solely pertaining to the Holders, prior to their
being disseminated. The Company and the Holders shall cooperate with each other
in the preparation of the Offer Documents.
(c) The Company shall use commercially reasonable efforts to complete the
Offer in accordance with the terms hereof. Upon satisfaction of all conditions
to the Offer, the Company shall complete the Offer and accept the Old Notes for
exchange of New Notes and New Preferred Stock in accordance with the terms of
the Offer as soon as reasonably practical following the expiration of the Offer.
The Holders shall cooperate with the Company as it reasonably requests in
connection with the completion of the Offer and other transactions contemplated
hereby.
(d) The Offer Documents shall include a solicitation of acceptances of the
plan of reorganization attached as Annex D hereto (the "Plan of
Reorganization"), in compliance with applicable requirements under the
Bankruptcy Code.
(e) Simultaneously with the execution of this Agreement, the Company shall
deliver to the Holders a certificate of the secretary or an assistant secretary
of the Company
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certifying that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors authorizing the execution, delivery and
performance of this Agreement and the transactions contemplated hereby and that
all such resolutions are still in full force and effect and are all the
resolutions adopted in connection with the transactions contemplated by this
Agreement.
1.02 Holder Actions. (a) Each Holder hereby approves and consents to the
Offer. Each Holder shall tender or cause to be tendered all Old Notes
beneficially owned by it or its affiliates pursuant to the Offer and shall vote
or cause to be voted all such Old Notes in favor of the approval and adoption of
the Plan of Reorganization, and will not vote in favor of any other plan of
reorganization or any action that is intended or could reasonably be expected to
adversely affect the Plan of Reorganization.
(b) In connection with the Offer, each Holder will furnish the Company with
such information (which will be treated and held in confidence by the Company
except as required by law) and assistance as the Company or its Representatives
(as defined in Section 8.11) may reasonably request in connection with the
preparation and consummation of the Offer, provided that the provision of any
such information does not violate (i) any confidentiality agreement by which
such Holder is bound as of the date of this Agreement and of which such Holder
has advised the Company no later than the date hereof or (ii) any provision of
applicable law.
1.03 Company Board Representation; Section 14(f). (a) Upon the consummation
of the Offer, or the effective date of the Plan, as applicable, the Company and
the Holders shall promptly use their commercially reasonable efforts to (i)
cause each of the directors (except the Company's chief executive officer) to
resign from the Board of Directors and (ii) take all actions necessary to cause
the Board of Directors to consist of five persons, one of whom is the Company's
chief executive officer and four of whom are designees of the Holders, with one
of such designees being a person who would qualify as an independent director
under the Marketplace Rules of the Nasdaq Stock Market excluding the financial
statement knowledge requirements applicable to the composition of audit
committees, who shall be independent (as defined under such rules) both with
respect to the Company and with respect to each holder of more than 5% of (i)
the New Preferred Stock, upon consummation of the Offer, or (ii) the Common
Stock, upon the effective date of the Plan, as the case may be (the "Independent
Director"), including accepting the resignations of those incumbent directors
designated by the Company or increasing the size of the Board of Directors and
causing the Holders' designees to be elected.
(b) The Company's obligations to appoint the Holders' designees to the
Board of Directors shall be subject to Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder, if applicable. The Company shall promptly
take all actions required pursuant to such Section and Rule in order to fulfill
its obligations under this Section, and shall include in the Offering Documents,
and otherwise disseminate to the holder of the Company's common stock, such
information with respect to the Company and its officers and directors as is
required under such Exchange Act Section and Rule to fulfill such obligations.
Each Holder shall supply to the
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Company and be solely responsible for any information with respect to such
Holder and its officers, directors and affiliates required by such Section 14(f)
and Rule 14f-1.
(c) If at any time there is no Independent Director, the other directors
shall designate a person to fill such vacancy who satisfies the requirements of
paragraph (a) of this Section, and such person shall be deemed to be the
Independent Director for purposes of this Agreement.
1.04 Conditions to Holders' Obligations. The obligation of each Holder to
tender the Old Notes owned beneficially and of record by it in the Offer is
subject to the fulfillment, on or before the Consummation Date, of each of the
following conditions (all or any of which may be waived in whole or in part by
such Holder in its sole discretion):
(a) The representations and warranties made by the Company in this
Agreement shall be true and correct in all material respects on and as of the
Consummation Date as though such representation or warranty was made on and as
of the Consummation Date; provided that any representation or warranty made as
of a specified date earlier than the Consummation Date shall have been true and
correct in all respects material to the validity and enforceability of this
Agreement on and as of such earlier date.
(b) The Company shall have merged into itself its subsidiary Viskase
Corporation, with the Company being the surviving corporation.
(c) The Board of Directors as of the time of the consummation of the Offer
shall consist of five persons, one of whom is the Company's chief executive
officer and four of whom are designees of a majority of the shares of New
Preferred Stock held by the Holders, with one of such designees being a person
that would qualify as an Independent Director.
(d) The Company shall have redeemed or terminated the rights (the "Company
Rights") issued pursuant to, or shall have terminated, the Rights Agreement
dated as of June 26, 1996, as amended, by and between the Company and ▇▇▇▇▇▇
Trust & Savings Bank, as Rights Agent (the "Company Rights Agreement").
(e) All Old Notes, excluding all Old Notes held by the Holders and their
affiliates, shall have been tendered in the Offer.
(f) The indenture under which the New Notes are to be issued shall have
been qualified under the Trust Indenture Act of 1939 ( the "TIA").
(g) The Company shall have delivered to each Holder a certificate, dated
the Consummation Date and executed in the name and on behalf of the Company by
the Chairman of the Board, the President or any Vice President of the Company,
certifying to the effect that (i) each of the conditions in paragraphs (a)
through (f) above have been satisfied or, if not satisfied, waived by each
Holder in writing, (ii) the Company has duly performed or complied with each of
the agreements, covenants and obligations required by this Agreement in all
material respects and (iii) the Offer Documents do not contain any untrue
statement of a material fact or omit to
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state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, the Company shall make no such representation as to
information concerning the Holders supplied in writing by the Holders.
(h) The Company shall have delivered to the Holders a certificate of the
secretary or an assistant secretary of the Company certifying that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors authorizing the execution, delivery and performance of this Agreement
and the transactions contemplated hereby and that all such resolutions are still
in full force and effect and are all the resolutions adopted in connection with
the transactions contemplated by this Agreement.
(i)The Company shall have adopted bylaws in the form attached to this
Agreement as Annex G.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Holders:
2.01 Organization and Qualification. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has full corporate power and authority to
conduct its business as and to the extent now conducted and to own, use and
lease its assets and properties, except for such failures to be so incorporated,
existing and in good standing or to have such power and authority which,
individually or in the aggregate, are not having and could not be reasonably
expected to have a material adverse effect (as defined in Section 8.11) on the
Company and its Subsidiaries taken as a whole. The Company has previously
delivered to the Holders correct and complete copies of its Certificate of
Incorporation and Bylaws.
2.02 Capital Stock. The authorized capital stock of the Company consists
solely of 50,000,000 shares of common stock, par value $0.01 per share ("Company
Common Stock"), and 25,000,000 shares of preferred stock, par value $0.01 per
share ("Company Preferred Stock"). As of July 10, 2002, 15,316,062 shares
(including restricted stock issued to employees of the Company but which shares
have not been issued in certificated form) of Company Common Stock were issued
and outstanding; no shares were held in the treasury of the Company. Since such
date, there has been no change in the number of issued and outstanding shares of
Company Common Stock or shares of Company Common Stock held in treasury and
413,398 and 775,644 shares were reserved for issuance under the Company's 1993
Stock Option Plan and Parallel Non-Qualified Savings Plan, respectively. As of
the date hereof, no shares of Company Preferred Stock are issued and
outstanding. All of the issued and outstanding shares of Company Common Stock
are, and all shares reserved for issuance (including the shares of New Preferred
Stock issuable in the Offer and the shares of Company Common Stock issuable on
conversion thereof) will be, upon issuance in accordance with the terms
specified in the
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instruments or agreements pursuant to which they are issuable, duly
authorized, validly issued, fully paid and nonassessable. Except pursuant to
this Agreement and the Company Rights Agreement, and except as disclosed in the
Disclosure Schedule (as defined in Section 8.11), there are no outstanding
subscriptions, options, warrants, rights (including "phantom" stock rights),
preemptive rights or other contracts, commitments, understandings or
arrangements, including any right of conversion or exchange under any
outstanding security, instrument or agreement (together, "Options"), obligating
the Company or any of its Subsidiaries to issue or sell any shares of capital
stock of the Company or to grant, extend or enter into any Option with respect
thereto or "phantom" stock rights or otherwise provide any payment or
compensation based on "phantom" stock or measured by the value of the Company's
stock, assets, revenues or other similar measure.
2.03 Authority Relative to This Agreement. The Company has full corporate
power and authority to enter into this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby have been duly and
validly approved by the Board of Directors, and except as provided in Article IV
and Sections 5.01 and 5.04 hereof, no other corporate proceedings on the part of
the Company or its stockholders are necessary to authorize the execution,
delivery and performance of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by the Company and constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.04 Non-Contravention; Approvals and Consents. (a) The execution and
delivery of this Agreement by the Company do not, and the performance by the
Company of its obligations hereunder and the consummation of the transactions
contemplated hereby will not, conflict with, result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default under,
result in or give to any person any right of payment or reimbursement,
termination, cancellation, modification or acceleration of, or result in the
creation or imposition of any Lien upon any of the assets or properties of the
Company under, any of the terms, conditions or provisions of (i) the Certificate
of Incorporation or Bylaws (or other comparable charter documents) of the
Company or (ii) subject to the taking of the actions described in paragraph (b)
of this Section, (x) any statute, law, rule, regulation or ordinance (together,
"laws"), or any judgment, decree, order, writ, permit or license (together,
"orders"), of any court, tribunal, arbitrator, authority, agency, commission,
official or other instrumentality of the United States, any foreign country or
any domestic or foreign state, county, city or other political subdivision (a
"Governmental or Regulatory Authority") applicable to the Company or any of its
assets or properties, or (y) any note, bond, mortgage, security agreement,
indenture, license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind (together, "Contracts") to which
the Company is a party or by which the Company or any of its assets or
properties is bound, which conflict, violation, breach, default, termination,
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modification, acceleration or creation and imposition of Liens would be
material to a reasonable investor in light of all the circumstances known to
such investor.
(b) Except for qualification of the indenture under which the New Notes are
to be issued and as may be required under state securities laws and as otherwise
previously disclosed in the Disclosure Schedule, no consent, approval or action
of, filing with or notice to any Governmental or Regulatory Authority or other
public or private third party is necessary, or required under any of the terms,
conditions or provisions of any law or order of any Governmental or Regulatory
Authority or any Contract to which the Company is a party or by which the
Company or any of its assets or properties is bound, for the execution and
delivery of this Agreement by the Company, the performance by the Company of its
obligations hereunder or the consummation of the transactions contemplated
hereby, the failure of which consent or approval to be obtained, or action,
filing or notice to be made, would be material to a reasonable investor in light
of all the circumstances known to such investor.
2.05 Legal Proceedings. Except as disclosed in the Company SEC Reports
filed prior to the date of this Agreement, as of the date hereof (i) there are
no actions, suits, arbitrations or proceedings pending or, to the knowledge of
the Company, threatened against, relating to or affecting, nor to the knowledge
of the Company are there any Governmental or Regulatory Authority investigations
or audits pending or threatened against, relating to or affecting, the Company
or any of its assets and properties with respect to the transactions
contemplated by this Agreement which would be material to a reasonable investor
in light of all the circumstances known to such investor and (ii) none of the
Company nor any Significant Subsidiary is subject to any order of any
Governmental or Regulatory Authority with respect to the transactions
contemplated by this Agreement which would be material to a reasonable investor
in light of all the circumstances known to such investor.
2.06 Information Supplied. (a) The Offering Documents and any other
documents to be filed by the Company with the SEC or any other Governmental or
Regulatory Authority in connection with the Offer and the other transactions
contemplated hereby will not, on the date of its filing or, with respect to the
Offering Documents, at the date they are first published, sent or given to
holders of the Old Notes, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading, except that no representation is made by the
Company with respect to information supplied in writing by or on behalf of any
Holder expressly for inclusion therein and information incorporated by reference
therein from documents filed by any Holder with the SEC. Any such other
documents filed by the Company with the SEC under the Exchange Act or the TIA
will comply as to form in all material respects with the requirements of the
Exchange Act and/or the TIA.
(b) Neither the information supplied or to be supplied in writing by or on
behalf of the Company for inclusion, nor the information incorporated by
reference from documents filed by the Company with the SEC, in any documents to
be filed by a Holder with the SEC or any other Governmental or Regulatory
Authority in connection with the Offer and the other transactions contemplated
hereby will on the date of its filing contain any untrue statement of a
13
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
2.07 Company Rights Agreement. As of the date hereof and after giving
effect to the execution and delivery of this Agreement, each Company Right is
represented by the certificate representing the associated share of Company
Common Stock and is not exercisable or transferable apart from the associated
share of Company Common Stock, and the Company has (i) taken all necessary
actions so that the execution and delivery of this Agreement and the
consummation of the Offer and the other transactions contemplated hereby will
not result in a "Distribution Date", a "Triggering Event" or a "Business
Combination" (as defined in the Company Rights Agreement) and (ii) amended the
Company Rights Agreement to render it inapplicable to this Agreement, the Offer
and the other transactions contemplated hereby.
2.08 Section 203 of the DGCL Not Applicable. Section 203 of the General
Corporation Law of the State of Delaware (the "DGCL") does not, before the
termination of this Agreement, apply to this Agreement, the Offer or the other
transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
Each Holder represents and warrants to the Company with respect to such Holder
as follows:
3.01 Organization and Qualification. It is an entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has full power and authority to conduct its business as and to
the extent now conducted and to own, use and lease its assets and properties,
except for such failures to be so organized, existing and in good standing or to
have such power and authority which, individually or in the aggregate, are not
having and could not be reasonably expected to have a material adverse effect on
it.
3.02 Authority Relative to This Agreement. It has full power and authority
to enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement by it and the consummation of the transactions
contemplated hereby have been duly and validly approved by it, and no other
proceedings on its part or the part of its stockholders, partners, members or
other similar constituents, as the case may be, are necessary to authorize the
execution, delivery and performance of this Agreement by it and the consummation
by it of the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by it and constitutes its legal, valid and
binding obligation enforceable against it in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
14
3.03 Non-Contravention; Approvals and Consents. (a) The execution and
delivery of this Agreement by it does not, and the performance by it of its
obligations hereunder and the consummation of the transactions contemplated
hereby will not, conflict with, result in a violation or breach of, constitute
(with or without notice or lapse of time or both) a default under, result in or
give to any person any right of payment or reimbursement, termination,
cancellation, modification or acceleration of, or result in the creation or
imposition of any Lien upon any of its assets or properties under, any of the
terms, conditions or provisions of (i) its certificate or articles of
incorporation or bylaws (or other comparable charter documents), or (ii) subject
to the taking of the actions described in paragraph (b) of this Section, (x) any
laws or orders of any Governmental or Regulatory Authority applicable to it or
any of its assets or properties, or (y) any Contracts to which it is a party or
by which it or any of its assets or properties is bound, excluding from the
foregoing clauses (x) and (y) conflicts, violations, breaches, defaults,
terminations, modifications, accelerations and creations and impositions of
Liens which, individually or in the aggregate, could not be reasonably expected
to have a material adverse effect on its ability to consummate the transactions
contemplated by this Agreement.
(b) No consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other public or private third party is
necessary or required under any of the terms, conditions or provisions of any
law or order of any Governmental or Regulatory Authority or any Contract to
which it is a party or by which it or any of its assets or properties is bound
for its execution and delivery of this Agreement, the performance of its
obligations hereunder or the consummation of the transactions contemplated
hereby, other than such consents, approvals, actions, filings and notices which
the failure to make or obtain, as the case may be, individually or in the
aggregate, could not be reasonably expected to have a material adverse effect on
its ability to consummate the transactions contemplated by this Agreement.
3.04 Legal Proceedings. There are no actions, suits, arbitrations or
proceedings pending or, to the knowledge of the Holder threatened against,
relating to or affecting, nor to its knowledge are there any Governmental or
Regulatory Authority investigations or audits pending or threatened against,
relating to or affecting, it or any of its assets and properties which,
individually or in the aggregate, could be reasonably expected to have a
material adverse effect on its ability to consummate the transactions
contemplated by this Agreement, and such Holder is not subject to any order of
any Governmental or Regulatory Authority which, individually or in the
aggregate, could be reasonably expected to have a material adverse effect on its
ability to consummate the transactions contemplated by this Agreement.
3.05 Information Supplied. (a) Any documents to be filed by the Holder with
the SEC or any other Governmental or Regulatory Authority in connection with the
Offer and the other transactions contemplated hereby will not, on the date of
its filing contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading, except that no representation is made with respect to information
supplied in writing by or on behalf of the Company expressly for inclusion
therein and information incorporated by reference therein from documents filed
by the Company with the
15
SEC. Any such documents filed by it with the SEC under the Exchange Act
will comply as to form in all material respects with the requirements of the
Exchange Act.
(b) Neither the information supplied or to be supplied in writing by or on
behalf of the Holder expressly for inclusion, nor the information incorporated
by reference from documents filed by it with the SEC, in other documents to be
filed by it or the Company with any other Governmental or Regulatory Authority
in connection with the Offer and the other transactions contemplated hereby will
on the date of its filing or, with respect to the Offering Documents, on the
date they are first published, sent or given to holders of the Old Notes,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
3.06 Ownership of Old Notes. The Holders and their respective affiliates
will tender all Old Notes they own, directly or indirectly, as of the
Consummation Date free and clear of all Liens. Each Holder has previously
disclosed to the Company in writing the principal amount of Old Notes owned by
each of such Holder and its affiliates and such Holder hereby represents that
such writing is true and correct.
3.07 Confidentiality Agreements. Except as disclosed on Schedule 3.07
attached hereto, such Holder is not a party to any confidentiality agreement or
similar agreement which would prevent the Holder from disclosing information in
connection with the preparation and consummation of the Offer.
ARTICLE IV
COVENANTS OF THE COMPANY
4.01 Merger. Immediately prior to the time when it accepts Old Notes for
exchange under the Offer (the "Consummation Date"), the Company shall merge into
itself its subsidiary Viskase Corporation, with the Company being the surviving
corporation.
4.02 Company Rights Agreement. Prior to the Consummation Date, the Company
will redeem the Company Rights in accordance with the terms of the Company
Rights Agreement or terminate the Company Rights Agreement.
4.03 Subordination Agreement. The Company shall take all commercially
reasonable actions necessary to enforce, to the fullest extent permitted under
applicable law, the provisions of Section 20(b) of the Security Agreement dated
as of July 28, 2000 between it, certain of its Subsidiaries and other parties
and General Electric Capital Corporation with respect to the New Notes,
including, but not limited to, by seeking injunctions to prevent breaches of
such agreement and to enforce specifically the terms and provisions thereof in
any court having jurisdiction.
4.04 Plan of Reorganization. If all conditions to the Offer have not been
satisfied (after extension of the Offer if applicable) and the Offer shall have
terminated or expired in
16
accordance with its terms, no later than the third business day following
the Final Expiration Date, the Company shall file the Plan of Reorganization
with a bankruptcy court if the Company shall have obtained from holders of the
Old Notes the requisite consents under the Bankruptcy Code. The Company shall
use commercially reasonable efforts to have the Plan of Reorganization confirmed
by such bankruptcy court.
4.05 Conduct of Business. Between the date hereof and the Consummation Date
or the effective date of the Plan, whichever is later, the Company and its
Subsidiaries shall conduct business only in the ordinary course.
4.06 Issuance of Securities. Except as provided in Section 5.04 hereof,
between the date hereof and the Consummation Date or the effective date of the
Plan, as applicable, the Company shall not issue or agree to issue any
securities of the Company other than shares of Common Stock issued pursuant to
Company stock options or similar rights outstanding as of the date hereof under
the Parallel Non-Qualified Savings Plan referred to in Section 2.02 and the
Company Rights Agreement.
4.07 GECC Agreements. Between the date hereof and the Consummation Date or
the effective date of the Plan, as applicable, the Company and its Subsidiaries
will not enter into any modification, supplement or amendment of or to any
provisions of the GECC Participation Agreement, Lease, Ground Lease, Ground
Sublease, Facility Support Agreement, Guaranty, Subordination Agreement or
Security Agreement (true and complete copies of which, including all amendments
and waivers, have been delivered by the Company to the Holders before the date
of this Agreement) without the consent of the Holders, or enter into any other
arrangements or agreements with GECC or any of its subsidiaries with respect to
the assets, liabilities or other matters covered by the aforesaid agreements or
otherwise, provided, that this provision shall not apply to such matters as (i)
releases of security interests or property, (ii) waivers of defaults or duties
of the Company or its Subsidiaries or rights of another party to the document,
(iii) consents to sales of property or (iv) forbearances or extensions of time
for performance by the Company or its Subsidiaries, in the case of clauses (i)
through (iv) above where the undertakings of the Company and its Subsidiaries in
connection with such modification, supplement or amendment are limited to such
matters as (A) updating of representations, (B) provision of documents relating
to internal corporate proceedings, (C) execution of UCC filings, (D) agreements
to pay transaction costs and (E) furnishing of opinions. Any requisite consent
will be deemed given if the Holders shall not have objected in writing within
five business days after receipt of written notice of the proposed modification,
supplement or waiver.
ARTICLE V
ADDITIONAL AGREEMENTS
5.01 Charter Amendment. The Company shall, through the Board of Directors,
duly call, give notice of, convene and hold a meeting of its stockholders for
the purpose of voting on an amendment to its certificate of incorporation to
increase the number of authorized shares
17
of Company Common Stock to 1,000,000,000 as soon as reasonably practicable
after the Consummation Date so as to permit conversion of the New Preferred
Stock.
5.02 Regulatory and Other Approvals. (a) Subject to the terms and
conditions of this Agreement and without limiting the provisions of Annex C, the
Company will proceed diligently and in good faith to, as promptly as
practicable, (i) obtain all consents, approvals or actions of, make all filings
with and give all notices to Governmental or Regulatory Authorities (including
state securities commissions) or any other public or private third parties
required of the Company or any of its Subsidiaries to consummate the Offer and
the other matters contemplated hereby, and (ii) provide such other information
and communications to such Governmental or Regulatory Authorities or other
public or private third parties as the other party or such Governmental or
Regulatory Authorities or other public or private third parties may reasonably
request in connection therewith. The Holders shall cooperate with the Company as
it may reasonably request in connection with the Company's satisfaction of its
obligations under this paragraph (a).
(b) Subject to the terms and conditions of this Agreement and without
limiting the provisions of Annex C, each Holder will proceed diligently and in
good faith to, as promptly as practicable, (i) obtain all consents, approvals or
actions of, make all filings with and give all notices to Governmental or
Regulatory Authorities (including state securities commissions) or any other
public or private third parties required of such Holder or any of its
Subsidiaries to consummate the Offer and the other matters contemplated hereby,
and (ii) provide such other information and communications to such Governmental
or Regulatory Authorities or other public or private third parties as the other
party or such Governmental or Regulatory Authorities or other public or private
third parties may reasonably request in connection therewith. The Company shall
cooperate with each Holder as it may reasonably request in connection with such
Holder's satisfaction of its obligations under this paragraph (b).
5.03 Transfer Restrictions; Termination of Transfer Restrictions. (a) From
the date hereof until the Consummation Date or the effective date of the Plan,
as the case may be, no Holder may transfer and no Holder shall permit any
affiliate to 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
Old Notes.
(b) From the date hereof until three years after the Consummation Date or
the effective date of the Plan, as the case may be, 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 shares of New Preferred
Stock or Company Common Stock into which the New Preferred Stock is converted
("Converted Common Stock"). 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
the second anniversary of the Consummation Date, a Holder may transfer New
Preferred Stock or Converted Common Stock for cash, provided that, until and
including the third anniversary of the Consummation Date, (i) at least 20
business days before such transfer such Holder shall have furnished to the
Company with respect
18
to the transferee the information that would be required in a Schedule 13D
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 New Preferred Stock and
Converted Common Stock held by each Holder will be appropriately legended to
reflect the provisions of this Section.
5.04 Restricted Stock Plan. Immediately prior to the Consummation Date, the
Company shall issue 640,000 shares of New Preferred Stock to Company personnel
designated by the Company's Chief Executive Officer under the plan attached to
this Agreement as Annex E (the "Restricted Stock Plan"); provided, however, the
Company shall have the right to issue instead of such shares options exercisable
for New Preferred Stock.
As soon as practicable after the Consummation Date or the effective date of
the Plan, as the case may be, the Company shall file a registration statement on
Form S-8 promulgated by the SEC under the Securities Act (or any successor or
other appropriate form) with respect to the New Preferred Stock (or shares
subject to such options, as the case may be) and shall use its commercially
reasonable efforts to maintain the effectiveness of such registration statement
or registration statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such New Preferred Stock or
options remain outstanding. With respect to those individuals who will be
subject to the reporting requirements under Section 16(a) of the Exchange Act,
where applicable, the Company shall administer the Restricted Stock Plan in a
manner that complies with Rule 16b-3 promulgated under the Exchange Act.
5.05 No Solicitations. Prior to the Consummation Date or the effective date
of the Plan, as the case may be, the Company agrees that neither it nor any of
its Subsidiaries or other affiliates shall, and it shall use its best efforts to
cause their respective Representatives (as defined in Section 8.11) not to,
initiate or solicit, directly or indirectly, any inquiries or the making or
implementation of any proposal or offer (including, without limitation, any
proposal or offer to its stockholders) with respect to a merger, consolidation
or other business combination including the Company or any of its Significant
Subsidiaries or any acquisition or similar transaction (including, without
limitation, a tender or exchange offer) involving (A) the purchase of (i) all or
any significant portion of the assets of the Company and its Subsidiaries taken
as a whole, (ii) 50% or more of the outstanding shares of Company Common Stock
or (iii) 50% of the outstanding shares of the capital stock of any Significant
Subsidiary of the Company or (B) the refinancing, replacement, defeasance or
refunding of the Old Notes (any such proposal or offer being hereinafter
referred to as an "Alternative Proposal"); provided, however, that prior to the
Consummation Date, nothing contained in this Section 5.05 shall prohibit the
Board of Directors from (i) furnishing information to or entering into
discussions or negotiations with any person or group that makes an unsolicited
bona fide Alternative Proposal; provided that, with the advice of counsel, the
Board of Directors in good faith determines that such action is required for
19
the Board of Directors to comply with its fiduciary obligations; and (ii)
to the extent required, complying with Rule 14e-2 promulgated under the Exchange
Act with regard to an Alternative Proposal.
5.06 Expenses. Except for the reasonable out-of-pocket expenses incurred by
the Holders in connection with the negotiation, execution and implementation of
this Agreement, including the reasonable fees, expenses and disbursements of one
counsel for Holders, which the Company agrees to reimburse to the Holders,
whether or not the Offer is consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such cost or expense.
5.07 Brokers or Finders. Each of the Holders and the Company represents, as
to itself and its affiliates, that no agent, broker, investment banker,
financial advisor or other firm or person is or will be entitled to any broker's
or finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated by this Agreement and each of the Holders and the
Company shall indemnify and hold the others harmless from and against any and
all claims, liabilities or obligations with respect to any other such fee or
commission or expenses related thereto asserted by any person on the basis of
any act or statement alleged to have been made by such party or its affiliate.
5.08 Notice of Developments. The Company will promptly notify the Holders
of any development that is likely to result in a major effect on the business,
assets, operations or financial condition of the Company and its Subsidiaries
taken as a whole or the Company's ability to perform its obligations under this
Agreement.
5.09 Notice and Cure. Each of the Holders and the Company will notify the
other of, and will use all commercially reasonable efforts to cure, any event,
transaction or circumstance, as soon as practicable after it becomes known to
such party, that causes or will cause any covenant or agreement of the Holders
or the Company under this Agreement to be breached or any of the conditions to
the Offer not to be satisfied or that renders or will render untrue any
representation or warranty of the Holders or the Company contained in this
Agreement. Each of the Holders and the Company also will notify the other in
writing of, and will use all commercially reasonable efforts to cure, before the
Closing, any violation or breach, as soon as practicable after it becomes known
to such party, of any representation, warranty, covenant or agreement made by
the Holders or the Company. No notice given pursuant to this Section shall have
any effect on the representations, warranties, covenants or agreements contained
in this Agreement for purposes of determining satisfaction of any condition
contained herein.
5.10 Fulfillment of Conditions. Subject to the terms and conditions of this
Agreement, each of the Holders and the Company will take or cause to be taken
all commercially reasonable steps necessary or desirable and proceed diligently
and in good faith to satisfy each condition to the other's obligations contained
in this Agreement and to consummate and make effective the transactions
contemplated by this Agreement, and neither the Holders nor the Company will
take or fail to take any action that could be reasonably expected to result in
the nonfulfillment of any such condition. 20
5.11 Registration Rights Agreement. Immediately prior to consummation of
the Offer, the parties hereto will execute a registration rights agreement in
the form of Annex F hereto.
5.12 Employment Agreements. (a) Each Holder acknowledges and agrees that to
the best of its knowledge there is no reason why (i) the Employment Agreements
are not valid and binding obligations of the Company and Viskase Corporation and
(ii) upon execution in accordance with the terms of this Agreement, the
Indemnification Agreements (as defined in Section 5.12(b) below) will not be
valid and binding obligations of the Company.
(b) For as long as this Agreement remains in effect, each Holder covenants
and agrees that (y) it will, and after the Consummation Date, and for as long as
such Holder or its affiliates owns any voting securities of the Company it will,
take no action, and will not support the action of any of their affiliates or
any other third party to or to cause the Company to breach, challenge, reject or
question the validity or binding status of, including without limitation in any
bankruptcy proceeding, (i) the Amended and Restated Employment Agreement dated
March 27, 1996, as amended, between F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Company, (ii)
the Employment Agreement dated August 30, 2001, as amended, and the Letter of
Credit Agreement dated April 9, 2002 among F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the Company and
Viskase Corporation, (iii) the Employment Agreement dated November 29, 2001
among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Company and Viskase Corporation, (iv) the
Employment Agreement dated November 29, 2001 among ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, the
Company and Viskase Corporation (collectively, the "Employment Agreements") and
(v) the indemnification agreements, each dated the date hereof, by and between
the Company and each director and officer listed in Schedule 5.12 attached
hereto (collectively, the "Indemnification Agreements"), or to have the
Employment Agreements or the Indemnification Agreements declared invalid, and
(z) it will support and not oppose the assumption by the Company of the
Employment Agreements and the Indemnification Agreements in a plan of
reorganization.
ARTICLE VI
COVENANTS OF THE HOLDERS
6.01 Forbearance. For as long as this Agreement remains in effect, each
Holder agrees that it shall (i) not commence, including the issuance or
employment of process, judicial, administrative or other action or proceeding
against the Company, or take any other act to collect, assess or recover any
claim with respect to the Old Notes, (ii) not join or participate with any
person in taking any action specified in clause (i) above and (iii) to the
extent provided for in the indenture, veto any instructions to take any of the
actions specified in clause (i) above given by any holder of Old Notes to the
trustee under the indenture pursuant to which the Old Notes were issued. 21
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.01 Termination. This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned:
(a) By mutual written agreement of the parties hereto;
(b)By either the Company or the Holders upon notification to the
non-terminating party by the terminating party:
(i) at any time after the Final Expiration Date if neither the exchange of
the Old Notes pursuant to the Offer shall have occurred nor sufficient
acceptances approving the Plan of Reorganization shall have been received on or
prior to such date and such failure is not caused by a breach of this Agreement
by the terminating party;
(ii) at any time following January 31, 2003 if both (x) the Offer is not
consummated and (y) the Plan of Reorganization, if filed by the Company, has not
been confirmed by such date;
(iii) if any court of competent jurisdiction or other competent
Governmental or Regulatory Authority shall have issued an order making illegal
or otherwise restricting, preventing or prohibiting the Offer and such order
shall have become final and non-appealable; or
(iv) if any plan of reorganization, other than the Plan of Reorganization,
is approved by any bankruptcy court; provided that the terminating party is not
the person that submitted such plan and does not support or endorse any such
plan.
(c) By the Holders upon notification to the Company:
(i) if the Company fails to commence the Offer within 15 business days of
the date hereof and such failure is not as a result of any breach of this
Agreement by any Holder;
(ii) if the Company fails to use commercially reasonable efforts to
complete the Offer in accordance with its terms and (x) such failure is not as a
result of any breach of this Agreement by any Holder and (y) the Company does
not cure such failure within 10 business days of the date of notice to the
Company;
(iii) at any time after the third business day following the Final
Expiration Date if the Company has not filed the Plan of Reorganization pursuant
to Section 4.04 and the Company fails to file such Plan of Reorganization within
three business days of the date of notice to the Company; 22
(iv) in the event the Plan of Reorganization is filed with a bankruptcy
court, if the Company files or supports another plan of reorganization or fails
to use commercially reasonable efforts to have the Plan of Reorganization
confirmed by the bankruptcy court in accordance with the terms of such plan and
(x) such failure is not as a result of any breach of this Agreement by any
Holder and (y) the Company does not cure such failure within 10 business days of
the date of notice to the Company;
(v) prior to the consummation of the Offer or the confirmation of the Plan
of Reorganization, as the case may be, if there has been a breach of the
representations, warranties, covenants or agreements on the part of the Company
set forth in this Agreement, which breach (x) is material in the context of the
Offer and other transactions contemplated hereby and (y) is not curable or, if
curable and the Company proceeds in good faith to cure the breach, has not been
cured within 30 days of the date of notice of such breach to the Company;
(vi) prior to the consummation of the Offer, if the outstanding Company
Rights are triggered other than by action of any Holder or affiliate and
additional shares of Company Common Stock are issued or become issuable upon the
exercise of the Rights; provided, however, that such termination shall not be
effective for the 10 business days following notice of termination pursuant to
this clause (vi) and that during such 10 business day period the Company and the
Holders shall use their good faith efforts to amend and modify the terms hereof
to preserve the economic result of the original transaction contemplated
hereunder in light of the Company Rights being exercisable, such amendment to be
mutually agreeable to the Holders and the Company; or
(vii) prior to the consummation of the Offer or the confirmation of the
Plan of Reorganization, as the case may be, if F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have
resigned from the Company at the request of the Board of Directors (other than
for Cause as defined in his employment agreement with the Company) without the
consent of the Holders, given as provided in Section 7.03.
(d) By the Company upon notification to the Holders:
(i) if any Holder (x) prior to the Final Expiration Date fails to tender
its Old Notes and vote in favor of the approval or adoption of the Plan of
Reorganization in accordance with Section 1.02 or (y) files an involuntary
petition for reorganization or liquidation of the Company or similar petition
under Bankruptcy Law or votes in favor of, or supports, any such filing or any
other plan of reorganization other than the Plan of Reorganization;
(ii) if the Board of Directors determines in good faith, based upon the
advice of outside counsel, that termination of the Agreement is required for the
Board of Directors to comply with its fiduciary duties imposed by law by reason
of a bona fide Superior Proposal and notifies the Holders promptly of its
intention to terminate this Agreement or enter into a definitive agreement with
respect to such Superior Proposal; 23
provided, however, that in no event shall such notice be given less than 48
hours prior to the public announcement of the Company's termination of this
Agreement and the Company shall, within such 48-hour period, permit the Holders
to submit a new proposal, which the Board of Directors shall consider in good
faith. For purposes of this paragraph, "Superior Proposal" means any Alternative
Proposal as to which (A) the Board of Directors with the advice of outside
counsel determines in good faith that such action is required for the Board of
Directors to comply with its fiduciary duties imposed by law, (B) the Board of
Directors concludes in good faith that such Alternative Proposal is more
favorable to the Company than the Offer, and (C) prior to entering into
discussions or negotiations with such person or group, the Company provides
written notice to the Holders to the effect that it is entering into discussions
or negotiations with such person or group;
(iii) prior to the consummation of the Offer or the confirmation of the
Plan of Reorganization, as the case may be, there has been a breach of the
representations, warranties or agreements of a Holder set forth in this
Agreement, which breach (x) is material in the context of the Offer and other
transactions contemplated hereby and (y) is not curable, or if curable and the
Holder proceeds in good faith to cure the breach, has not been cured within 30
day of the date of notice of such breach to the breaching Holder; or
(iv) if any Holder fails to comply with its obligations under Section
1.02(b); provided, however, such termination shall be effective only if the
Company shall have delivered to the Holders a written notice of breach
describing the breach and stating it is a notice of breach and the breaching
Holder fails to cure such breach within 10 business days of the date such notice
is received by the Company.
7.02 Effect of Termination. If this Agreement is validly terminated by
either the Company or Holders pursuant to Section 7.01, this Agreement will
forthwith become null and void and there will be no liability or obligation on
the part of either the Company or the Holders (or any of their respective
Representatives or affiliates), except that the provisions of Sections 5.06 and
5.07 and this Section 7.02 will continue to apply following any such
termination.
7.03 Amendment and Waiver; Holder Requests and Consents. (a) This Agreement
may be amended, supplemented or modified at any time in a written agreement
signed by the Company and each of the Holders. In addition, until the completion
of the Offer, or confirmation of the Plan of Reorganization, as the case may be,
this Agreement (including but not limited to the Offer and Plan of
Reorganization referred to herein) may be amended, supplemented or modified, and
any of the covenants, agreements, or conditions contained herein may be waived,
by written agreement signed by the Company and by both (i) Holders representing
a majority of the aggregate principal amount of the Old Notes held by the
Holders, measured as of the date of this Agreement and (ii) at least two of the
Holders; except that no amendment, supplement, modification or waiver that
amends or changes the terms of the New Notes, Preferred Stock or Common Stock,
increases the obligations or liabilities of any of the Holders, or otherwise
amends or changes the terms and conditions of the Offer in any manner adverse to
any of the Holders may be effected without the unanimous written consent of all
of
24
the Holders. No amendment, supplement, modification or waiver by any party
of any term, provision, agreement or condition of this Agreement, in any one or
more instances, shall be deemed to be or construed as an amendment, supplement,
modification or waiver of the same or any other term, provision, agreement or
condition of this Agreement on any future occasion.
(b) In addition, any requests or consents by the Holders as contemplated in
this Agreement shall be effective upon delivery to the Company of a notice
thereof signed by both (i) Holders representing a majority of the aggregate
principal amount of the Old Notes held by the Holders, measured as of the date
of this Agreement and (ii) at least two of the Holders.
7.04 Notice of Termination by Holders. Termination of this Agreement by the
Holders in accordance with provisions of Section 7.01 hereof shall be effective
upon delivery to the Company of a notice thereof signed by both (i) Holders
representing a majority of the aggregate principal amount of the Old Notes held
by the Holders, measured as of the date of this Agreement and (ii) at least two
of the Holders.
ARTICLE VIII
GENERAL PROVISIONS
8.01 Non-Survival of Representations, Warranties, Covenants and Agreements.
The representations, warranties, covenants and agreements contained in this
Agreement or in any instrument delivered pursuant to this Agreement shall not
survive the consummation of the Offer, except for the agreements contained in
Sections 1.03(c), 4.03, 5.01, 5.03, 5.04, 5.06, 5.07, 5.08 and 5.12 and this
Article VIII, which shall survive the Consummation Date.
8.02 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 the Holders, to:
High River Limited Partnership
c/o Icahn Associates Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
25
Debt Strategies Fund Inc.
c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Managers, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Northeast Investors Trust
c/o Northeast Investors
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇
with copies to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ Berlack Israels LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to the Company, to:
Viskase Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: President
with a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ 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, request or other communication is to be delivered pursuant
to this Section). Any party from time to time
26
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.
8.03 Entire Agreement; Incorporation of Exhibits. (a) Except with respect
to the Confidentiality Agreement between the parties hereto (the
"Confidentiality Agreement"), which the parties hereto expressly acknowledge
shall continue in full force and effect following execution of this Agreement,
this Agreement supersedes all prior discussions and agreements among the parties
hereto with respect to the subject matter hereof and contains the sole and
entire agreement among the parties hereto with respect to the subject matter
hereof.
(b) Any Exhibit attached to this Agreement and referred to herein is hereby
incorporated herein and made a part hereof for all purposes as if fully set
forth herein.
8.04 Public Announcements. Except as otherwise required by law or the rules
of any applicable securities exchange or national market system, so long as this
Agreement is in effect, the parties will not, and will not permit any of their
respective Representatives to, issue or cause the publication of any press
release or make any other public announcement with respect to the transactions
contemplated by this Agreement without the consent of the other parties, which
consent shall not be unreasonably withheld. The parties will cooperate with each
other in the development and distribution of all press releases and other public
announcements with respect to this Agreement and the transactions contemplated
hereby, and will furnish the others with drafts of any such releases and
announcements as far in advance as practicable.
8.05 No Third Party Beneficiary. The terms and provisions of this Agreement
are intended solely for the benefit of each party hereto and their respective
successors or permitted assigns, and except as provided in Sections 5.04 and
5.12 (which are intended to be for the benefit of the persons entitled to
therein, and may be enforced by any of such persons), it is not the intention of
the parties to confer third-party beneficiary rights upon any other person.
8.06 No Assignment; Binding Effect. Except as provided in Section 5.03,
neither this Agreement nor any right, interest or obligation hereunder may be
assigned by any party hereto without the prior written consent of the other
parties hereto and any attempt to do so will be void. 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.
8.07 Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define, modify or limit the provisions
hereof.
8.08 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law or order, 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. 27
8.09 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.
8.10 Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specified terms or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of competent jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.
8.11 Certain Definitions. As used in this Agreement:
(a)the term "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;
(b)the term "Bankruptcy Law" means Title 11 of the United States Code or
any similar federal or state law for the relief of debtors.
(c)a person will be deemed to "beneficially" own securities if such person
would be the beneficial owner of such securities under Rule 13d-3 under the
Exchange Act, including securities which such person has the right to acquire
(whether such right is exercisable immediately or only after the passage of
time);
(d)the term "business day" means a day other than Saturday, Sunday or any
day on which banks located in the State of Illinois are authorized or obligated
to close;
(e) the term "Company SEC Reports" means each form, report, schedule,
registration statement, definitive proxy statement and other document (together
with all amendments thereof and supplements thereto) required to be filed by the
Company or any of its Subsidiaries with the SEC under Sections 13(a), 14(a),
14(c) and 15(d) of the Exchange Act (as such documents have since the time of
their filing been amended or supplemented).
(f)[intentionally omitted.]
(g)the term "Disclosure Schedule" shall mean the record delivered to the
Holders by the Company herewith and dated as of the date hereof, containing all
lists, descriptions, exceptions and other information and materials as are
required to be included therein by the Company pursuant to this Agreement.
28
(h)the term "knowledge" or any similar formulation of "knowledge" shall
mean, with respect to the Company, the knowledge of the Company's executive
officers;
(i)the term "Lien" means a lien, claim, mortgage, charge, encumbrance,
security interest, pledge or equity of any kind.
(j)any reference to any event, change or effect being "material" or
"materially adverse" or having a "material adverse effect" on or with respect to
an entity (or group of entities taken as a whole) means such event, change or
effect is material or materially adverse, as the case may be, to the business,
condition or results of operations of such entity (or of such group entities
taken as a whole);
(k)the term "person" shall include individuals, corporations, partnerships,
limited liability companies, trusts, other entities and groups (which term shall
include a "group" as such term is defined in Section 13(d)(3) of the Exchange
Act);
(l)the term "Public Offering" means an offering by the Company or its
successor of securities registered pursuant to a registration statement filed
with the SEC.
(m) the "Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives;
(n) the term "Significant Subsidiaries" means, with respect to any party,
the Subsidiaries of such party which constitute "significant subsidiaries" under
Rule 405 promulgated by the SEC under the Securities Act; and
(o) the term "Subsidiary" means, with respect to any party, any
corporation or other organization, whether incorporated or unincorporated, of
which more than 50% of either the equity interests in, or the voting control of,
such corporation or other organization is, directly or indirectly through
Subsidiaries or otherwise, beneficially owned by such party.
8.12 [intentionally omitted.]
8.13 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.
29
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
signed by its officer thereunto duly authorized as of the date first above
written.
HIGH RIVER LIMITED PARTNERSHIP
By: Barberry Corp., its General Partner
By: _________________________,
Name:
Title:
DEBT STRATEGIES FUND, INC.
By:__________________________
Name:
Title:
NORTHEAST INVESTORS TRUST
By:__________________________
Name:
Title:
VISKASE COMPANIES, INC.
By:__________________________
Name:
Title:
30