EXECUTION VERSION
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.
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................................................................... 1
1.02 Holder Actions.............................................................. 3
1.03 Company Board Representation; Section 14(f)................................. 3
1.04 Conditions to Holders' Obligations.......................................... 4
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.01 Organization and Qualification.............................................. 5
2.02 Capital Stock............................................................... 5
2.03 Authority Relative to This Agreement........................................ 6
2.04 Non-Contravention; Approvals and Consents................................... 6
2.05 Legal Proceedings........................................................... 7
2.06 Information Supplied........................................................ 7
2.07 Company Rights Agreement.................................................... 8
2.08 Section 203 of the DGCL Not Applicable...................................... 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
3.01 Organization and Qualification.............................................. 8
3.02 Authority Relative to This Agreement........................................ 8
3.03 Non-Contravention; Approvals and Consents................................... 9
3.04 Legal Proceedings........................................................... 9
3.05 Information Supplied........................................................ 9
3.06 Ownership of Old Notes...................................................... 10
3.07 Confidentiality Agreements.................................................. 10
ARTICLE IV COVENANTS OF THE COMPANY
4.01 Merger...................................................................... 10
4.02 Company Rights Agreement.................................................... 10
4.03 Subordination Agreement..................................................... 10
4.04 Plan of Reorganization...................................................... 10
4.05 Conduct of Business......................................................... 11
4.06 Issuance of Securities...................................................... 11
ARTICLE V ADDITIONAL AGREEMENTS
5.01 Charter Amendment........................................................... 11
5.02 Regulatory and Other Approvals.............................................. 12
5.03 Transfer Restrictions; Termination of Transfer Restrictions................. 12
5.04 Restricted Stock Plan....................................................... 13
5.05 No Solicitations............................................................ 13
5.06 Expenses ................................................................... 14
5.07 Brokers or Finders.......................................................... 14
5.08 Notice of Developments...................................................... 14
5.09 Notice and Cure............................................................. 14
5.10 Fulfillment of Conditions................................................... 14
5.11 Registration Rights Agreement............................................... 15
5.12 Employment Agreements....................................................... 15
ARTICLE VI COVENANTS OF THE HOLDERS
6.01 Forbearance................................................................. 15
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER
7.01 Termination................................................................. 16
7.02 Effect of Termination....................................................... 18
7.03 Amendment and Waiver; Holder Requests and Consents.......................... 18
7.04 Notice of Termination by Holders............................................ 19
ARTICLE VIII GENERAL PROVISIONS
8.01 Non-Survival of Representations, Warranties, Covenants and Agreements....... 19
8.02 Notices..................................................................... 19
8.03 Entire Agreement; Incorporation of Exhibits................................. 21
8.04 Public Announcements........................................................ 21
8.05 No Third Party Beneficiary.................................................. 21
8.06 No Assignment; Binding Effect............................................... 21
8.07 Headings.................................................................... 21
8.08 Invalid Provisions.......................................................... 21
8.09 Governing Law............................................................... 22
8.10 Enforcement of Agreement.................................................... 22
8.11 Certain Definitions......................................................... 22
8.12 [intentionally omitted.].................................................... 23
8.13 Counterparts................................................................ 23
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
Annex G AMENDED AND RESTATED BYLAWS
ii
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)
iii
"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)
iv
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
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
2
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
3
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
Xxxxxx 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
4
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
5
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, modification,
6
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
7
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).
8
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
9
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
10
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
11
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
12
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
13
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.
14
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. Xxxxxx
Xxxxxxxxx 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.
Xxxxxx Xxxxxxxxx, the Company and Viskase Corporation, (iii) the Employment
Agreement dated November 29, 2001 among Xxxxxx X. Xxxxxxx, the Company and
Viskase Corporation, (iv) the Employment Agreement dated November 29, 2001 among
Xxxxxxxx X. Xxxxxxxxxx, 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.
15
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;
16
(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.
Xxxxxx Xxxxxxxxx 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;
17
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
18
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.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxxxxx
19
Debt Strategies Fund Inc.
c/x Xxxxxxx Xxxxx Investment Managers, L.P.
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxx
Northeast Investors Trust
c/o Northeast Investors
00 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn.: Xxxxx Xxxxxx
with copies to:
Xxxxx Xxxxxxx Berlack Israels LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn.: Xxxxxx X. Xxxxxxxxx, Esq.
If to the Company, to:
Viskase Companies, Inc.
000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: President
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxx Brilliant, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time
20
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.
21
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.
22
(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.
23
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:_________________________,
as general partner
By:_________________________
Name:
Title:
DEBT STRATEGIES FUND, INC.
By:__________________________
Name:
Title:
NORTHEAST INVESTORS TRUST
By:__________________________
Name:
Title:
VISKASE COMPANIES, INC.
By:__________________________
Name:
Title:
24
Annex A
[Form of Indenture]
Annex B
[Certificate of Designations]
Annex C
CONDITIONS TO THE OFFER
The capitalized terms used in this Annex C shall have the
meanings ascribed to them in the Restructuring Agreement to which it is
attached, except that the term "Restructuring Agreement" shall be deemed to
refer to such Restructuring Agreement.
Notwithstanding any other provision of the Offer, the Company
shall not be required to accept for exchange or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act
(relating to the Company's obligation to pay for or return tendered Old Notes
promptly after termination or withdrawal of the Offer), exchange, and may
(subject to any such rule or regulation) delay the acceptance for exchange of
any Old Notes, and may (except as provided in the Restructuring Agreement) amend
or terminate the Offer as to any Old Notes not then exchanged, if (i) the
condition that all Old Notes outstanding shall have been validly tendered and
not properly withdrawn prior to the expiration of the Offer shall not have been
satisfied (the "Minimum Condition"), (ii) the indenture under which the New
Notes are to be issued has not been qualified under the Trust Indenture Act of
1939, (iii) the merger referred to in Section 4.01 of the Restructuring
Agreement shall not have occurred (the "Merger Condition") or (iv) at any time
on or after the date of the execution of the Restructuring Agreement and before
the time of acceptance for any such Old Notes (whether or not any have
theretofore been accepted pursuant to the Offer), any of the following events
shall have occurred and remain in effect:
(a) there shall have been any law or final, non-appealable
order promulgated, entered, enforced, enacted, issued or deemed
applicable to the Offer by any court of competent jurisdiction or other
competent Governmental or Regulatory Authority which, directly or
indirectly, prohibits, restrains or makes illegal the acceptance for
payment, payment for or purchase of Old Notes pursuant to the Offer;
(b) there shall be instituted or pending any action, suit or
proceeding brought by a Governmental or Regulatory Authority
challenging the acquisition of Old Notes or otherwise seeking to
restrain or prohibit the making or consummation of the Offer;
(c) the Restructuring Agreement shall have been terminated in
accordance with its terms;
(d) the Holders and the Company shall have agreed that the
Company shall amend the Offer to terminate the Offer or postpone the
acceptance for exchange of Old Notes for shares of New Preferred Stock
and New Notes thereunder;
(e) the representations and warranties made by each Holder in
the Restructuring Agreement shall not have been true and correct in all
material respects, as of the date of execution of the Restructuring
Agreement (or any other date as of which they are specifically made) or
shall thereafter cease to be true and correct in all respects material
to the validity and enforceability of this Agreement;
(f) the Holders shall not have performed or complied with each
of the agreements, covenants and obligations required by this Agreement
in all material respects; or
(g) the Offer Documents shall contain any untrue statement of
material fact with respect to, and supplied by, the Holders or omit to
state a material fact necessary in order to make the statements with
respect to the Holders therein, in light of the circumstances under
which they were made, not misleading;
which in the sole judgment of the Company, in any such case, and regardless of
the circumstances makes it inadvisable to proceed with the Offer or with such
acceptance for exchange.
The foregoing conditions are for the sole benefit of the
Company, may be asserted by the Company regardless of the circumstances giving
rise to any such condition and, subject to the terms and conditions of the
Restructuring Agreement and any requirements of law, may be waived by the
Company (other than the Minimum Condition or the Merger Condition), in whole or
in part at any time and from time to time in the sole discretion of the Company.
The failure by the Company at any time to exercise any of the foregoing rights
shall not be deemed a waiver of any such right and each such right shall be
deemed an ongoing right which may be asserted at any time and from time to time.
2
Annex D
[Plan of Reorganization]
Annex E
[Restricted Stock Plan]
Annex F
[Registration Rights Agreement]
Annex G
[Amended and Restated Bylaws]
Disclosure Schedule 2.02
Outstanding Options of the Company
- 871,930 employee and non-employee stock options.
- 775, 644 shares of Company Common Stock reserved for issuance under the
Parallel Non-Qualified Savings Plan.
Disclosure Schedule 2.04
Governmental / Regulatory Authority Consents
- None.
Disclosure Schedule 5.12
Indemnification Agreements
1. F. Xxxxxx Xxxxxxxxx
2. Xxxxxx X. Xxxxxxxxxx
3. Xxxxxxx X. Page
4. Xxxxxx X. Xxxxxxx
5. Xxxxxxxx X. Xxxxxxxxxx
6. Xxxxxxx X. Xxxx
7. Xxxxx X. Xxxxx
8. M. E. (Lon) XxXxxxxxxx
9. Cees M. Meijer
10. Xxxxx X. Xxxx
11. Xxxx X. Xxxxxxxxx
12. Xxxx-Xxx Tillon
Schedule 3.07
Confidentiality Agreements
1. High River Limited Partnership - None
2. Debt Strategies Fund, Inc. - None
3. Northeast Investors Trust - None