Registration Rights Agreement, dated as of November 7, 2006, by and between the Company and the Investors

---

 

VISKASE COMPANIES, INC.

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) dated as of November 7, 2006 is made and entered into by and between VISKASE COMPANIES, INC., a Delaware corporation (the “Company”) and the persons identified on Schedule I hereto (each, an “Investor” and collectively, the “Investors”). Capitalized terms used but not otherwise defined herein have the meanings given to them in the Stock Purchase Agreement (defined below).

WHEREAS, the Investors and the Company have entered into that certain Series A Preferred Stock Purchase Agreement, dated as of the date hereof, by and between the Investors and the Company (the “Stock Purchase Agreement”);

WHEREAS, pursuant to the Stock Purchase Agreement, the Company has agreed to sell and the Investors have agreed to purchase shares of Series A Preferred Stock;

WHEREAS, the execution and delivery of this Agreement is a condition to the consummation of the transactions contemplated by the Stock Purchase Agreement; and

WHEREAS, the Company desires to grant registration rights for the Registrable Securities pursuant to this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.	Requested Registrations.

 

1.1  Registration Requests. Upon the written request of one or more Initiating Holders of Registrable Securities holding a majority of all then outstanding Registrable Securities requesting that the Company effect the registration under the Securities Act of all or part of such Initiating Holders’ Registrable Securities and specifying the number of Registrable Securities to be registered and the intended method of disposition thereof, the Company will promptly, and in no event more than ten (10) business days after receipt of such request, give written notice (a “Notice of Requested Registration”) of such request to all other holders of Registrable Securities, and thereupon will use its best efforts to effect the registration under the Securities Act of (a) the Registrable Securities which the Company has been so requested to register by such Initiating Holder or Holders, and (b) all other Registrable Securities the holders of which have made written requests to the Company for registration thereof within fifteen (15) calendar days after the giving of the Notice of Requested Registration, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities so to be registered. If requested by the holders of a majority of the Registrable Securities requested to be included in any Requested Registration, the method of disposition of all Registrable Securities and any other securities included in such registration shall be an underwritten offering effected in accordance with Section 6.1. Subject to Section 1.5, the Company may include in such registration other securities for sale for its own account or for the account of any other Person.

 

1.2  Limitations on Requested Registrations. Notwithstanding anything herein to the contrary, the Company shall not be required to honor a request for a Requested Registration if:

(a)  In the case of a Long-Form Registration, the Company has previously effected three Effective Long-Form Registrations since the date hereof; provided, however, that there shall be no limit on the number of registrations effected as Short-Form Registrations, subject to the other provisions of this Section 1.2;

(b)  the Registrable Securities requested by Initiating Holders to be so registered does not constitute at least twenty-five percent (25%) of the total Registrable Securities then outstanding; or

(c)  such request is received by the Company less than one hundred eighty (180) calendar days following the effective date of any previous registration statement filed in connection with a Requested Registration or a Piggyback Registration unless the holder making the request had requested inclusion of Registrable Securities in such registration statement but was unable to participate fully as a result of Section 1.5 or 3.3.

1.3  Registration Statement Form. Requested Registrations shall be on such appropriate registration form promulgated by the Commission as shall be selected by the Company, and shall be reasonably acceptable to the holders of a majority of the Registrable Securities to which such registration relates, and shall permit the disposition of such Registrable Securities in accordance with the intended method or methods specified in their request for such registration.

1.4  Registration Expenses. The Company will pay all Registration Expenses incurred in connection with any Requested Registration.

1.5  Priority in Cutback Registrations. If a Requested Registration becomes a Cutback Registration, the Company will include in any such registration to the extent of the number which the Managing Underwriter advises the Company can be sold in such offering (a) first, Registrable Securities requested to be included in such registration by the Requesting Holders, pro rata on the basis of the number of Registrable Securities requested to be included by such holders and (b) second, other securities of the Company proposed to be included in such registration, allocated in accordance with the priorities then existing among the Company and the holders of such other securities; and any securities so excluded shall be withdrawn from and shall not be included in such Requested Registration.

 

2  Shelf Registration Statement. Upon the written request of one or more Initiating Holders of Registrable Securities holding a majority of all then outstanding Registrable Securities (such written request not to be provided prior to the earlier to occur of (a) (i) thirty (30) calendar days prior to the scheduled expiration or (ii) the earlier termination of the Rights Offering, as applicable, and (b) one hundred fifty (150) calendar days from Closing (the “Effective Date”)), the Company shall within thirty (30) calendar days of receipt thereof file with the Commission, and thereafter use its best efforts to have declared effective as soon as practicable after the filing thereof, a “shelf” registration statement (a “Shelf Registration Statement”) on Form S-1 pursuant to Rule 415 under the Securities Act or on such other form as may be appropriate under the Securities Act, in each case, covering the resale of all of the Registrable Securities (the “Shelf Registration”). The Company shall, subject to customary terms and conditions, use its best efforts to keep the Shelf Registration Statement continuously effective from the date that such Shelf Registration Statement is declared effective during the Effective Period to the extent required to permit the disposition (in accordance with the intended method or methods thereof, as aforesaid) of the Registrable Securities so registered. The Company will pay all Registration Expenses incurred in connection with any Shelf Registration.

 

 

3.	Piggyback Registrations.

 

3.1  Right to Include Registrable Securities. Notwithstanding any limitation contained in Section 1 or Section 2, if the Company at any time on or after the Effective Date proposes to effect a Piggyback Registration, it will give written notice (a “Notice of Piggyback Registration”), at least fifteen (15) calendar days prior to the anticipated filing date, to all holders of Registrable Securities of its intention to do so and of such holders’ rights under this Section 3, which Notice of Piggyback Registration shall include a description of the intended method of disposition of such securities. Upon the written request of any such holder made within fifteen (15) calendar days after receipt of a Notice of Piggyback Registration (which request shall specify the Registrable Securities intended to be disposed of by such holder), the Company will, subject to the other provisions of this Agreement, include in the registration statement relating to such Piggyback Registration all Registrable Securities that the Company has been so requested to register, all to the extent necessary to permit the disposition of such Registrable Securities in accordance with the intended method of disposition set forth in the Notice of Piggyback Registration. Notwithstanding the foregoing, if, at any time after giving a Notice of Piggyback Registration and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay registration of such securities, the Company may, at its election, give written notice of such determination to each holder of Registrable Securities and, thereupon, (a) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses in connection therewith) without prejudice, however, to the rights of any Requesting Holder to a Requested Registration under Section 1 or a Shelf Registration under Section 2, and (b) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable Securities for the same period as the delay in registering such other securities. No registration effected under this Section 3 shall relieve the Company of its obligations to effect a Requested Registration under Section 1 or a Shelf Registration under Section 2.

3.2  Registration Expenses. The Company will pay all Registration Expenses incurred in connection with any Piggyback Registration.

3.3  Priority in Cutback Registrations. If a Piggyback Registration becomes a Cutback Registration, the Company will include in such registration to the extent of the amount of the securities that the Managing Underwriter advises the Company can be sold in such offering:

 

 

(a)  if such registration as initially proposed by the Company was solely a primary registration of its securities, (i) first, the securities proposed by the Company to be sold for its own account and (ii) second, (a) any 2003 Securities requested to be included in such registration by requesting holders of 2003 Securities, (b) any Registrable Securities requested to be included in such registration by Requesting Holders and (c) any other securities of the Company proposed to be included in such registration, in the case of clauses (a), (b) and (c) above, allocated among the holders thereof in accordance with the priorities then existing among such holders; and

 

(b)  if such registration as initially proposed by the Company was in whole or in part requested by holders of securities of the Company, other than holders of Registrable Securities in their capacities as such, pursuant to demand registration rights, (i) first, such securities held by the holders initiating such registration and, if applicable, any securities proposed by the Company to be sold for its own account, allocated in accordance with the priorities then existing among the Company and such holders, (ii) second, if such registration was not initially requested by holders of the 2003 Securities in their capacity as such, any 2003 Securities requested to be included in such registration by requesting holders of 2003 Securities, (iii) third, any Registrable Securities requested to be included in such registration by Requesting Holders, pro rata on the basis of the number of Registrable Securities requested to be included by such holders, and (iv) fourth, any other securities of the Company proposed to be included in such registration, allocated among the holders thereof in accordance with the priorities then existing among the Company and the holders of such other securities;

 

and any securities so excluded shall be withdrawn from and shall not be included in such Piggyback Registration.

 

4.  Blackout Periods. The Company shall have the right to delay the filing or effectiveness of a registration statement required pursuant to Section 1 or Section 2 hereof or suspend sales under such registration statement during no more than three (3) periods aggregating to not more than ninety (90) calendar days in any twelve-month period (a “Blackout Period”) in the event that (a) the Company would, in accordance with the advice of its counsel, be required to disclose in the registration statement information not otherwise then required by law to be publicly disclosed and (b) in the reasonable judgment of the Company’s Board of Directors, (i) there is a reasonable likelihood that such disclosure, or any other action to be taken in connection with the prospectus, would materially and adversely affect or interfere with any financing, acquisition, merger, disposition of assets (not in the ordinary course of business), corporate reorganization or other material transaction involving the Company or (ii) there is a reasonable likelihood that such disclosure would materially and adversely affect or interfere with the best interests of the Company or its shareholders; provided, however, that the Company shall delay during such Blackout Period the filing or effectiveness of, or suspend sales under, any other registration statement required pursuant to the registration rights of the holders of any other securities of the Company. The Company shall promptly give the holders of Registrable Securities written notice of such determination containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. Notwithstanding anything else herein to the contrary, the Company shall not be required to disclose to the holders of Registrable Securities any of the facts or circumstances regarding material non-public information giving rise to any Blackout Period.

 

 

5.  Registration Procedures. If and whenever the Company is required to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 1, Section 2 or Section 3 hereof, the Company will use its best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method of disposition thereof. Without limiting the foregoing, the Company in each such case will, as expeditiously as possible, use its best efforts to:

 

5.1  prepare and file with the Commission the requisite registration statement to effect such registration and to cause such registration statement to become effective;

 

 

5.2  prepare and file with the Commission such amendments and supplements to such registration statement and any prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration statement and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration statement, in accordance with the intended methods of disposition thereof, until the earlier of (a) such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement and (b) one hundred twenty (120) calendar days after such registration statement becomes effective (such period tolled for any period that the registration statement and/or prospectus is unavailable to the Requesting Holders as a result of Section 4, Section 5.3(c) or Section 5.3(d); provided that, with respect to the Shelf Registration Statement, such period shall be the Effective Period);

 

5.3  promptly notify each Requesting Holder and the underwriter or underwriters, if any: (a) when such registration statement or any prospectus used in connection therewith, or any amendment or supplement thereto, has been filed and, with respect to such registration statement or any post-effective amendment thereto, when the same has become effective, (b) of any written request by the Commission for amendments or supplements to such registration statement or prospectus, (c) of the notification to the Company by the Commission of its initiation of any proceeding with respect to the issuance by the Commission of, or of the issuance by the Commission of, any stop order suspending the effectiveness of such registration statement and (d) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction;

 

5.4  furnish to each seller of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to such holder’s Registrable Securities, and such other documents, as such holder may reasonably request to facilitate the disposition of its Registrable Securities;

5.5  register or qualify all Registrable Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as each holder thereof shall reasonably request, keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any other action that may be reasonably necessary or advisable to enable such holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holder, except that the Company shall not for any such purpose be required (a) to qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this Section 5.5 be obligated to be so qualified, (b) to subject itself to taxation in any such jurisdiction or (c) to consent to general service of process in any jurisdiction;

5.6  cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable each holder thereof to consummate the disposition of such Registrable Securities;

5.7  furnish to each Requesting Holder a signed counterpart, addressed to such holder (and the underwriters, if any), of (a) an opinion of counsel for the Company, dated the effective date of such registration statement (or, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), reasonably satisfactory in form and substance to such holder, including, to the extent requested, a “10b-5 opinion,” and (b) a “comfort” letter, dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the date of any closing under the underwriting agreement), signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in underwritten Public Offerings of securities and, in the case of the accountants’ letter, such other financial matters, as such holder (or the underwriters, if any) may reasonably request;

5.8  notify in writing each holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which any prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at the request of any such holder promptly prepare and furnish to such holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

 

5.9  provide a CUSIP number and a transfer agent and registrar for all Registrable Securities covered by such registration statement not later than the effective date of such registration statement; and

5.10    cause all Registrable Securities covered by such registration statement to be listed, upon official notice of issuance, on any securities exchange on which any of the securities of the same class as the Registrable Securities are then listed.

The Company may require each holder of Registrable Securities as to which any registration is being effected to, and each such holder, as a condition to including Registrable Securities in such registration, shall, furnish the Company with such information and affidavits regarding such holder and the distribution of such securities as the Company may from time to time reasonably request in writing in connection with such registration.

Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.8, such holder will forthwith discontinue such holder’s disposition of Registrable Securities pursuant to the registration statement relating to such Registrable Securities until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.8 and, if so directed by the Company, will deliver to the Company all copies, other than permanent file copies, then in such holder’s possession of the prospectus relating to such Registrable Securities at the time of receipt of such notice. In the event the Company shall give any such notice, the period referred to in Section 5.2 shall be extended by a number of days equal to the number of days during the period from and including the giving of notice pursuant to Section 5.8 and to and including the date when each holder of any Registrable Securities covered by such registration statement shall receive the copies of the supplemented or amended prospectus contemplated by Section 5.8.

 

6.	Underwritten Offerings.

 

6.1  Underwritten Requested or Shelf Offerings. In the case of any underwritten Public Offering being effected pursuant to a Requested Registration or a Shelf Registration, the Managing Underwriter and any other underwriter or underwriters with respect to such offering shall be selected, after consultation with the Company, by the holders of a majority of the Registrable Securities to be included in such underwritten offering with the consent of the Company, which consent shall not be unreasonably withheld. The Company shall enter into an underwriting agreement in customary form with such underwriter or underwriters, which shall include, among other provisions, indemnities to the effect and to the extent provided in Section 8. The holders of Registrable Securities to be distributed by such underwriters shall be parties to such underwriting agreement and may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters also be made to and for their benefit and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement also be conditions precedent to their obligations. No holder of Registrable Securities shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such holder and its ownership of the securities being registered on its behalf and such holder’s intended method of distribution and any other representation required by law. No Requesting Holder may participate in such underwritten offering unless such holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. If any Requesting Holder disapproves of the terms of an underwriting, such holder may elect to withdraw therefrom and from such registration by notice to the Company and the Managing Underwriter, and each of the remaining Requesting Holders shall be entitled to increase the number of Registrable Securities being registered to the extent of the Registrable Securities so withdrawn in the proportion which the number of Registrable Securities being registered by each such remaining Requesting Holder bears to the total number of Registrable Securities being registered by all such remaining Requesting Holders.

6.2  Underwritten Piggyback Offerings. If the Company at any time proposes to register any of its securities in a Piggyback Registration and such securities are to be distributed by or through one or more underwriters, the Company will, subject to the provisions of Section 3.3, use its best efforts to arrange for such underwriters to include the Registrable Securities to be offered and sold by such holder among the securities to be distributed by such underwriter, and such holders shall be obligated to sell their Registrable Securities in such Piggyback Registration through such underwriters on the same terms and conditions as apply to the other Company securities to be sold by such underwriters in connection with such Piggyback Registration. The holders of Registrable Securities to be distributed by such underwriters shall be parties to the underwriting agreement between the Company and such underwriter or underwriters and may, at their option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters also be made to and for their benefit and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement also be conditions precedent to their obligations. No holder of Registrable Securities shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such holder and its ownership of the securities being registered on its behalf and any other representation required by law. No Requesting Holder may participate in such underwritten offering unless such holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement, including provisions requiring such holder to refrain from selling Registrable Securities for a customary period of time before and following such offering, and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. If any Requesting Holder disapproves of the terms of an underwriting, such holder may elect to withdraw therefrom and from such registration by notice to the Company and the Managing Underwriter, and each of the remaining Requesting Holders shall be entitled to increase the number of Registrable Securities being registered to the extent of the Registrable Securities so withdrawn in the proportion that the number of Registrable Securities being registered by each such remaining Requesting Holder bears to the total number of Registrable Securities being registered by all such remaining Requesting Holders.

 

7.	Holdback Agreements.

 

 

7.1  Unless the Managing Underwriter otherwise agrees, in connection with the first Public Offering hereunder, each holder of Registrable Securities, by acquisition of such Registrable Securities, agrees, and agrees to cause its Affiliates, not to effect any public sale or distribution (including a sale under Rule 144) of such securities, or any securities convertible into or exchangeable or exercisable for such securities, during the fourteen (14) calendar days prior to and the ninety (90) calendar days after the date the registration statement is declared effective by the SEC (an “Effective Registration”) in connection with such Public Offering (or for such shorter period of time as is sufficient and appropriate, in the opinion of the Managing Underwriter, in order to complete the sale and distribution of the securities included in such Effective Registration), except as part of such registration statement, whether or not such holder participates in such registration. Notwithstanding anything to the contrary in this Section 7 no holder of Registrable Securities, or any of its Affiliates, shall be prohibited from any public sale or distribution of such securities in connection with any Effective Registration unless all officers and directors of the Company agree to substantially the same limitations on public sale or distribution applicable to holders of Registrable Securities.

7.2  Unless the Managing Underwriter, if any, otherwise agrees, in connection with the first Effective Registration hereunder, the Company agrees, and agrees to cause its Affiliates, (a) not to effect any public sale or distribution of the Company's equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the fourteen (14) calendar days prior to and the ninety (90) calendar days after the date such registration statement is declared effective by the SEC (or for such shorter period of time as is sufficient and appropriate, in the opinion of the Managing Underwriter, in order to complete the sale and distribution of the securities included in such Effective Registration), except as part of such underwritten registration and except pursuant to registrations on Form S-4 or Form S-8 promulgated by the Commission or any successor or similar forms thereto, and (b) to cause each holder of the Company's equity securities, or of any securities convertible into or exchangeable or exercisable for such securities, in each case purchased from the Company at any time after the date of this Agreement (other than in a Public Offering), to agree not to effect any such public sale or distribution of such securities (including a sale under Rule 144), during such period, except as part of such underwritten registration. Unless the Managing Underwriter otherwise agrees, in connection with any Effective Registration other than the first Effective Registration hereunder, the Company agrees, and agrees to cause its Affiliates, (x) not to effect any public sale or distribution of the Company's equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the fourteen (14) calendar days prior to and the ninety (90) calendar days after the effective date of the registration statement filed in connection with an underwritten offering made pursuant to a Requested Registration or a Piggyback Registration (or for such shorter period of time as is `and appropriate, in the opinion of the Managing Underwriter, in order to complete the sale and distribution of the securities included in such Effective Registration), except as part of such underwritten registration and except pursuant to registrations on Form S-4 or Form S-8 promulgated by the Commission or any successor or similar forms thereto, and (y) to cause each holder of the Company's equity securities, or of any securities convertible into or exchangeable or exercisable for such securities, in each case purchased from the Company at any time after the date of this Agreement (other than in a Public Offering), to agree not to effect any such public sale or distribution of such securities (including a sale under Rule 144), during such period, except as part of such underwritten registration.

 

8.	Indemnification.

 

8.1  Indemnification by the Company. The Company shall, to the fullest extent permitted by law, indemnify and hold harmless each seller of Registrable Securities included in any registration statement filed in connection with a Requested Registration, a Shelf Registration or a Piggyback Registration, its directors and officers, and each other Person, if any, who controls any such seller within the meaning of the Securities Act, against any losses, claims, damages, expenses or liabilities, joint or several (together, “Losses”), to which such seller or any such director or officer or controlling Person may become subject under the Securities Act or otherwise, including but not limited to under the Exchange Act and state securities laws, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading, and the Company will reimburse such seller and each such director, officer and controlling Person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such Loss (or action or proceeding in respect thereof); provided that the Company shall not be liable in any such case to the extent that any such Loss (or action or proceeding in respect thereof) arises out of or is based upon (a) an untrue statement or alleged untrue statement or omission or alleged omission made in any such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by such seller specifically stating that it is for use in the preparation thereof, (b) such seller’s failure to send or give a copy of the final prospectus to the Persons asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such final prospectus, and such seller was provided such final prospectus or (c) such seller’s continued use of any prospectus, or supplement or amendment thereof, or distribution of securities therewith, of which such seller was notified to discontinue use pursuant to Section 5.8 hereof. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such seller or any such director, officer or controlling Person, and shall survive the transfer of such securities by such seller. The Company shall also indemnify each other Person who participates (including as an underwriter) in the offering or sale of Registrable Securities, their officers and directors and each other Person, if any, who controls any such participating Person within the meaning of the Securities Act to the same extent as provided above with respect to sellers of Registrable Securities.

8.2  Indemnification by the Sellers. Each holder of Registrable Securities that are included or are to be included in any registration statement filed in connection with a Requested Registration, a Shelf Registration or a Piggyback Registration, as a condition to including Registrable Securities in such registration statement, shall, to the fullest extent permitted by law, indemnify and hold harmless the Company, its directors and officers, and each other Person, if any, who controls the Company within the meaning of the Securities Act, against any Losses to which the Company or any such director or officer or controlling Person may become subject under the Securities Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading, if such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by such seller specifically stating that it is for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement; provided, however, that the obligation to provide indemnification pursuant to this Section 8.2 shall be several, and not joint and several, among such Indemnifying Parties on the basis of the number of Registrable Securities included in such registration statement, and the aggregate amount that may be recovered from any holder of Registrable Securities pursuant to the indemnification provided for in this Section 8.2 in connection with any registration and sale of Registrable Securities shall be limited to the total gross proceeds received by such holder from the sale of such Registrable Securities. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling Person and shall survive the transfer of such securities by such seller. Such holders shall also indemnify each other Person who participates (including as an underwriter) in the offering or sale of Registrable Securities, their officers and directors and each other Person, if any, who controls any such participating Person within the meaning of the Securities Act to the same extent as provided above with respect to the Company.

8.3  Notices of Claims, etc. Promptly after receipt by an Indemnified Party of notice of the commencement of any action or proceeding involving a claim referred to in the preceding Section 8.1 or 8.2, such Indemnified Party will, if a claim in respect thereof is to be made against an Indemnifying Party pursuant to such paragraphs, give written notice to the latter of the commencement of such action, provided that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under Section 8.1 or 8.2, except to the extent that the Indemnifying Party is actually prejudiced by such failure to give notice. In case any such action is brought against an Indemnified Party, the Indemnifying Party shall be entitled to participate in and, unless, in the reasonable judgment of any Indemnified Party, a conflict of interest between such Indemnified Party and any Indemnifying Party exists with respect to such claim, to assume the defense thereof, jointly with any other Indemnifying Party similarly notified to the extent that it may wish, with counsel reasonably satisfactory to such Indemnified Party, and after notice from the Indemnifying Party to such Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to such Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation; provided that the Indemnified Party may participate in such defense at the Indemnified Party’s expense; and provided further that the Indemnified Party or Indemnified Parties shall have the right to employ one counsel to represent it or them if, in the reasonable judgment of the Indemnified Party or Indemnified Parties, it is advisable for it or them to be represented by separate counsel by reason of having legal defenses that are different from or in addition to those available to the Indemnifying Party, and in that event the reasonable fees and expenses of such one counsel shall be paid by the Indemnifying Party. If the Indemnifying Party is not entitled to, or elects not to, assume the defense of a claim, it will not be obligated to pay the fees and expenses of more than one counsel for the Indemnified Parties with respect to such claim, unless in the reasonable judgment of any Indemnified Party a conflict of interest may exist between such Indemnified Party and any other Indemnified Parties with respect to such claim, in which event the Indemnifying Party shall be obligated to pay the fees and expenses of such additional counsel for the Indemnified Parties. No Indemnifying Party shall consent to entry of any judgment or enter into any settlement without the consent of the Indemnified Party that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. No Indemnifying Party shall be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld.

8.4  Contribution. If the indemnity and reimbursement obligation provided for in this Section 8 is unavailable or insufficient to hold harmless an Indemnified Party in respect of any Losses (or actions or proceedings in respect thereof) referred to therein, then the Indemnifying Party shall contribute to the amount paid or payable by the Indemnified Party as a result of such Losses (or actions or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and the Indemnified Party on the other hand in connection with statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that the aggregate amount that may be recovered from any holder of Registrable Securities pursuant to this Section 8.4 in connection with any registration and sale of Registrable Securities shall be limited to the total proceeds received by such holder from the sale of such Registrable Securities. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or the Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an Indemnified Party as a result of the Losses referred to in the first sentence of this paragraph shall be deemed to include any legal and other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any Loss that is the subject of this paragraph. No Indemnified Party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from the Indemnifying Party if the Indemnifying Party was not guilty of such fraudulent misrepresentation.

8.5  Other Indemnification. Indemnification similar to that specified in the preceding paragraphs of this Section 8 (with appropriate modifications) shall be given by the Company and each seller of Registrable Securities with respect to any required registration or other qualification of securities under any federal or state law or regulation of any governmental authority other than the Securities Act. The provisions of this Section 8 shall be in addition to any other rights to indemnification or contribution that an Indemnified Party may have pursuant to law, equity, contract or otherwise. To the extent that the indemnity provisions contained in any underwriting agreement to which the Company is a party conflict with this Section 8, such underwriting agreement shall control.

8.6  Indemnification Payments. The indemnification required by this Section 8 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Losses are incurred; provided that the Person to whom expenses are paid or advanced provides an undertaking to repay such advance if it is ultimately determined that such Person is not entitled to indemnification hereunder.

 

9.  Covenants Relating to Rule 144. The Company will file reports in compliance with the Exchange Act, will comply with all rules and regulations of the Commission applicable in connection with the use of Rule 144 and take such other actions and furnish such holder with such other information as such holder may request in order to avail itself of such rule or any other rule or regulation of the Commission allowing such holder to sell any Registrable Securities without registration, and will, at its expense, forthwith upon the request of any holder of Registrable Securities, deliver to such holder a certificate, signed by the Company’s principal financial officer, stating (a) the Company’s name, address and telephone number (including area code), (b) the Company’s Internal Revenue Service identification number, (c) the Company’s Commission file number, (d) the number of shares of each class of capital stock outstanding as shown by the most recent report or statement published by the Company, and (e) whether the Company has filed the reports required to be filed under the Exchange Act for a period of at least ninety (90) calendar days prior to the date of such certificate and in addition has filed the most recent annual report required to be filed thereunder. If at any time the Company is not required to file reports in compliance with either Section 13 or Section 15(d) of the Exchange Act, the Company at its expense will, forthwith upon the written request of the holder of any Registrable Securities, make available adequate current public information with respect to the Company within the meaning of paragraph (c)(2) of Rule 144.

 

10.   Other Registration Rights. The Company represents and warrants to the Investors that there is not in effect on the date hereof any agreement by the Company (other than this Agreement, the 2003 Registration Rights Agreement and the 2004 Registration Rights Agreement) pursuant to which any holders of securities of the Company have a right to cause the Company to register or qualify such securities under the Securities Act or any securities or blue sky laws of any jurisdiction. The Company shall not provide, or agree to provide, any rights to cause the Company to register or qualify any securities of the Company under the Securities Act or any securities or blue sky laws of any jurisdiction which rights are adverse to the rights granted to the Investors hereunder.

 

 

11.    Definitions; Construction.

 

11.1    Definitions. Except as otherwise specifically indicated, the following terms will have the following meanings for all purposes of this Agreement:

 

12.	Miscellaneous.

 

12.1    Notices. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission or mailed (first class postage prepaid) to the parties at the addresses or facsimile numbers set forth on the signature pages hereto. All such notices, requests and other communications will (a) if delivered personally, be deemed given upon delivery, (b) if delivered by facsimile transmission, be deemed given upon receipt and (c) if delivered by mail in the manner described, be deemed given upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice is to be delivered pursuant to this Section 12.1). Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving notice specifying such change to the other parties hereto.

12.2    Entire Agreement. This Agreement supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof, and contains the sole and entire agreement between the parties hereto with respect to the subject matter hereof.

12.3    Amendment. This Agreement may be amended, supplemented or modified only by a written instrument (which may be executed in any number of counterparts) duly executed by or on behalf of each of the Company and Persons owning a majority of the Registrable Securities.

12.4    Waiver. Subject to Section 12.5, any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. No waiver by any party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same term or condition of this Agreement on any future occasion.

12.5    Consents and Waivers by Holders of Registrable Securities. Any consent of the holders of Registrable Securities pursuant to this Agreement, and any waiver by such holders of any provision of this Agreement, shall be in writing (which may be executed in any number of counterparts) and may be given or taken by Persons owning a majority of the Registrable Securities, and any such consent or waiver so given or taken will be binding on all the holders of Registrable Securities.

12.6    No Third Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each party hereto, their respective successors or permitted assigns and any other holder of Registrable Securities, and it is not the intention of the parties to confer third-party beneficiary rights upon any other Person other than any Person entitled to indemnity under Section 8.

12.7    Successors and Assigns; Assignment. All covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. In addition, this Agreement may be assigned in whole or from time to time in part by the Investors in connection with the sale or other transfer of any or all of the Investors’ Registrable Securities, including sales or transfers to Affiliates.

12.8    Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.

12.9    Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of any party hereto under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof and (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom.

 

12.10  Remedies. Except as otherwise expressly provided for herein, no remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by any party hereto shall not constitute a waiver by any such party of the right to pursue any other available remedies. Damages in the event of breach of this Agreement by a party hereto or any other holder of Registrable Securities would be difficult, if not impossible, to ascertain, and it is therefore agreed that each such Person, in addition to and without limiting any other remedy or right it may have, will have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and the Company and each holder of Registrable Securities, by its acquisition of such Registrable Securities, hereby waives any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. The existence of this right will not preclude any such Person from pursuing any other rights and remedies at law or in equity that such Person may have.

12.11  Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to a contract executed and performed in such State, without giving effect to the conflicts of laws principles thereof.

12.12   Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

[THIS SPACE LEFT BLANK INTENTIONALLY]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

 

		COMPANY:
		VISKASE COMPANIES, INC.
		By:	/s/
			Robert L. Weisman, President and Chief Executive Officer
		8205 South Cass Avenue, Suite 115
		Darien, Illinois 60561
		Fax: (630) 874-0700
		For notice purposes, with a copy to:
		Thomas A. Monson
		Jenner & Block LLP
		One IBM Plaza
		Chicago, IL 60611
		Fax: (312) 840-8711

 

 

		INVESTOR:
		KOALA HOLDING LLC
		By:	/s/
		c/o  Icahn Associates Corp.
		767 5th Avenue, 47th Floor
		New York, New York 10153
		Facsimile: (212) 688-1158
		For notice purposes, with a copy to:
		Icahn Associates Corp.
		767 5th Avenue, 47th Floor
		New York, New York 10153
		Attn: Keith Schaitkin
		Facsimile: (212) 688-1158
		INVESTOR:
		GRACE BROTHERS, LTD.
		By:	/s/
		1560 Sherman Avenue, Suite 900
		Evanston, Illinois 60201
		Attn: Bradford Whitmore
		Facsimile: (847) 733-0339
		For notice purposes, with a copy to:
		Evelyn Arkebauer
		Sachnoff and Weaver
		30 S. Wacker Drive, 29th Floor
		Chicago, IL 60606
		INVESTOR:
		NORTHEAST INVESTORS TRUST
		By:	/s/
		150 Federal Street, Suite 1000
		Boston, Massachusetts 02110-1745
		Attn: Bruce Monrad
		Facsimile: (617) 523-5412

SCHEDULE I

 

INVESTORS

 

Koala Holding LLC

Grace Brothers, Ltd.

Northeast Investors Trust

 

 

---